Child Rights and Law : a guidebook for legal interventions PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Authored by: Maharukh Adenwalla Illustrated by: Kajal Gaba This publication is supported by: National Lottery Charities Board (UK) This publication is for private circulation. Any part of this publication may be reproduced or transmitted in any form or by any means with due acknowledgment to the authors and publishers. © CHILDLINE India Foundation, CIF First Published, February 2002 Printed at: Jenaz Printers, 261 2853 2
PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 FOREWARD CHILDLINE often encounters calls that require legal intervention while addressing the emergency needs of children and protecting their rights. Many a times, it is fear of the judicial system, lack of knowledge about procedures, lack of support systems or simply getting stuck at what would seem as the simplest of procedures; the fact however is that legal interventions have never been easy. The idea of this manual germinated from some such difficulties faced in handling calls.
In some calls, hospitals refused admissions to medically ill children, police refused to act on sexual abuse charges, authorities dealt ineffectively with institutional abuse or the labour department turned a blind eye at child labour. This manual serves as an insight into the legal responsibilities of varied allied systems that come in contact with a child, besides outlining intervention guidelines for calls that require legal inputs and procedures. This manual is a result of the various discussions held at different CHILDLINE artnership meets and forums, where the team shared their experiences, problems and concerns with respect to the legal system. The concept was also shared at the CHILDLINE Coordinators’ meet and this manual is a result of these discussions. We are grateful to Ms. Maharukh Adenwalla, a lawyer and child rights activist, for authoring this publication and meeting with the CHILDLINE teams in order to understand the legal problems faced by them. 3 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 This manual would definitely be of help, to intervene in legal cases.
However, the reader must remember that these guidelines are only ideal legal steps. At times, due to social pressures, a legal intervention step has to be combined with social work skills keeping in mind the best interest of the child and respecting the wishes of the child. It is equally important to explain the legal process involved, to the child. Therefore it is recommended that the team members discuss the nature and implications of legal interventions within the team and with the child before going ahead with legal action. This manual is divided into two parts.
The first part illustrates different types of calls at CHILDLINE that require legal intervention. These calls overlap in different categories so the reader may find one case study classified into 2 or more categories, depending on the situation of the child in need of care and protection. This classification is also listed in Annexure-I. The second part of the manual deals with various laws related to children. We hope this manual is of use to not only our CHILDLINE teams but to other child rights activists as well, who work towards protecting children in need of care and protection. CHILDLINE India Foundation Team 4
PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 PREFACE A child has rights, but due to age constraints is unable to claim her/ his rights. The rights of a child are exercised by proxy through the family, society and State. Unfortunately, these very agencies are responsible for violating children’s rights. Non-governmental organisations, therefore, play a vital role in protecting and promoting the rights of children. CHILDLINE constantly intervenes to ensure children their rights. CHILDLINE has been given special mention under the Juvenile Justice (Care and Protection of Children) Act 2000.
Under this Act, CHILDLINE is empowered to produce a child in need of care and protection before the Child Welfare Committee. Other voluntary organisations or agencies are also empowered to perform such function, but require to be so recognised by the State government. Voluntary organisations or agencies not so recognised can approach CHILDLINE to safeguard the interests of children requiring care and protection. Most of the calls received by CHILDLINE are concerned with deprivation or violation of rights, and their responses are based in law. It is essential for activists to identify violation of legal rights and offer legal remedies.
No longer is it enough to merely provide a place of safety to the child, the violator has to be punished and told that such conduct will not be tolerated. 5 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 6 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 CONTENTS No. Topics PART I CASE STUDIES 1 . 2. 3. Pysical abuse and forced domestic work by parents ………. 1 1 Physical abuse and non-payment of wages by employer … 1 3 Physical abuse and wrongful confinement of domestic worker …………………………………………………………. 5 4. Refusal of police to record complaint of physical abuse of domestic worker ……………………………………………………… 1 6 5. 6. 7. 8. 9. 10. 1. 1 12. 13. 14. 15. 16. Torture of domestic worker by police …………………………….. 1 6 Death of domestic worker due to neglect ………………………. 1 7 Children employed in bidi-making unit ………………………….. 1 8 Harassment by railway police ……………………………………… 20 Permanent injury due to railway accident ………………………. 1 Eve-teasing at railway station ………………………………………. 22 Proposed child marriage …………………………………………….. 22 Corporal punishment at school ……………………………………. 23 Repeated physical abuse by father ………………………………. 24 Sexual abuse by father ……………………………………………….. 25 Rescue from brothel ……………………………………………………. 27 Child of woman in prostitution …………………………………….. 27 7 Page No. PDF created with FinePrint pdfFactory Pro trial version http://www. ineprint. com 1098 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. Pornography and sexual activity …………………………………… 28 Sexual Abuse in Obervation Home by Superintendent ……. 30 Death in Children’s Home ……………………………………………. 3 1 Rape by neighbours …………………………………………………… 33 Arrest of 6 year old for commission of offence ……………… 34 Arrest of 10 year old for commission of offence …………….. 35 Lost child unable to give particulars ……………………………… 7 Search for missing child ……………………………………………… 38 Runaway child wanting to return home ………………………… 38 Child tested HIV positive ……………………………………………… 39 HIV testing by residential institution ………………………………. 39 Discharge from Public Hospital due to HIV status ………….. 40 Public Hospital’s refusal to treat a street child ………………… 4 1 Insistence by Public Hospital to lodge police complaint prior to admission/treatment ………………………….. 4 1 31. 32. 33.
Dead child found on roadside …………………………………….. 42 Permanent injury caused by motorist ……………………………. 42 Guardianship Certificate for legal dues of deceased father …………………………………………………………. 43 34. 35. 36. 37. 38. Education facilities for disabled ……………………………………. 44 Mental illness of mother ……………………………………………… 45 Mentally disabled street child ………………………………………. 46 Custody of child on divorce …………………………………………. 6 Grant of Domicile Certificate ………………………………………… 47 8 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 39. 40. 41. 42. Adoption by Hindu parent …………………………………………… 48 Adoption of abandoned child ………………………………………. 49 Adoption by Indian Christian parent ……………………………… 50 Rescue from begging ring ……………………………………………. 5 1 Part II CHILD RELATED LAWS AND JUDGEMENTS 1 . Constitution of India ……………………………………………………. 2 Public Interest Litigation ……………………………………………….. 54 2. Right to Health …………………………………………………………… 55 Pt. Parmanand Katara vs. Union of India (AIR 1989 S. C. 2039) 3. Right to Education ………………………………………………………. 56 Unni Krishnan, J. P. vs. State of Andhra Pradesh (AIR 1993 S. C. 2178) 4. The Juvenile Justice (Care and Protection of Children) Act 2000 …………………………………………………………………… 56 Krist Pereira vs. The State of Maharashtra & Ors. (Criminal Writ Petition No. 107 of 1996- Bombay High Court) 5. 6. The Women’s and Children’s (Licensing) Act 1956 …………… 67 The Child Labour (Prohibition and Regulation) Act 1986 …… 68 M. C. Mehta vs. State of Tamil Nadu (AIR 1997 S. C. 699) 7. The Bonded Labour System (Abolition) Act 1976 ……………… 70 Bandhua Mukti Morcha vs. Union of India (AIR 1984 S. C. 802) 9 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 8. Criminal Procedure ……………………………………………………… 72 Bailable and Non-bailable Offence Cognizable and Non-cognizable Offence . 10. 1. 1 First Information Report ……………………………………………….. 74 Indian Penal Code 1860 ……………………………………………… 74 Torture ……………………………………………………………………….. 8 1 Rekha M. Kholkar vs. State of Goa & Ors. (III (1995) CCR 470 (DB)) 12. 13. The Probation of Offenders Act 1958 …………………………….. 82 The Immoral Traffic (Prevention) Act 1956 ………………………. 83 The Public at Large vs. State of Maharashtra & Ors. 1997 (4) Bom. C. R. 171 Prerana vs.
State of Maharashtra (Writ Petition No. 1332 of 1999 -Bombay High Court) 14. 15. Maintenance of Children …………………………………………….. 93 Adoption ……………………………………………………………………. 95 Lakshmi Kant Pandey vs. Union of India (AIR 1984 S. C. 469) Central Adoption Resource Agency (CARA) Manuel Theodore D’Souza (2000 (2) Bom. C. R. 244) 16. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995 ……….. 102 17. 18. The Child Marriage Restraint Act 1929 …………………………. 03 Annexure-I ………………………………………………………………… 105 10 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 PART I This Part of the book contains queries, some hypothetical and others frequently asked, to be handled by a CHILDLINE volunteer. Only necessary legal intervention in handling queries is dealt with in this book. It is essential for a CHILDLINE volunteer to have some basic knowledge of the law as many queries require a prompt legal response; initial action taken can make or break a case.
Improper handling at the initial stage could cause irreparable damage to the child. It is also very important for CHILDLINE activists to identify advocates in their region who will provide legal support in complex cases. This book is a mere guide to help the CHILDLINE volunteer in providing immediate basic assistance to the caller. Case No. 1 Thirteen year old Gita is constantly harassed by her mother and step-father. Gita and her younger sister do domestic work in nearby households. Gita wants to go to school, but each time she suggests the same she is beaten by her mother and/or step-father. . The mother and step-father of Gita have committed an offence under the Indian Penal Code and the Juvenile Justice [Care and Protection of Children] Act. a) Causing hurt to any person is an offence under the Indian Penal Code, and is punishable with imprisonment which may extend to one year, or with fine which may extend to Rs. 1,000/-, or with both. b) Assaulting of a child by a person who is in charge of or control of that child is an offence under the Juvenile Justice [Care and Protection of Children] Act.
The offender is liable to be punished with imprisonment which may extend to six months, or with fine, or with both. 11 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 2. CHILDLINE must bring this ill-treatment to the notice of the Child Welfare Committee established under the Juvenile Justice [Care and Protection of Children] Act, and ensure that an inquiry is initiated by the Committee. The mother and step-father of Gita will be called before the Committee along with their children. The aid of Special Juvenile Police Unit may be taken for production before the Committee.
The Committee will speak with the children, and the mother/step-father. i) If it appears to the Committee that the children have been harassed or beaten by their mother/step-father, the children will be temporarily removed to the Children’s Home or a place of safety. CHILDLINE or any other organisation may apply for temporary custody of the children pending inquiry by the Committee. If the Committee is satisfied that CHILDLINE or any other organisation has the appropriate facilities, the children will be given in the temporary care of CHILDLINE or the other organisation. ii) If on completion of inquiry it is evident that the mother / step-father have been ill-treating Gita and her sister, the Committee may punish the mother / step-father with imprisonment / fine / both. (iii) If it appears to the Committee that the mother / stepfather are willing to care for the children, the children may be kept with the mother / step-father. The mother / step-father will be required to execute a bond with or without surety, and will be responsible for the wellbeing of the children.
The bond should contain a condition that the children will not be ill-treated or forced to do domestic work and will be sent to school. The Committee has the powers to put the children under 12 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 supervision of a Probation Officer. If the mother / stepfather continue with the ill-treatment, the children will be removed from their care and put into a Children’s Home or in the care of an appropriate organisation willing to care for the children. iv) If it appears to the Committee that the mother / stepfather are unfit to care for Gita and her sister, the children may be put in the care of a Children’s Home, or in the care of CHILDLINE or any other organisation, if CHILDLINE or the other organisation are able to satisfy the Committee that they have the requisite facilities for the care, education and healthy development of children. 3. If Gita and her sister have been severely beaten by the mother / step-father, it is necessary that a complaint be filed at the nearest police station. It is also necessary to ensure that the children are medically examined at a Public Hospital.
The complaint may be filed by CHILDLINE or any person. In such case both the Child Welfare Committee and the police will conduct an investigation. The proceedings before the Committee will be with regards to the care and future of the children, whereas the criminal proceedings will focus on punishment to the offending mother / step-father. 4. It is necessary that a CHILDLINE representative be present during the proceedings before the Child Welfare Committee to protect the interest of Geeta and her sister. Case No. 2 Eleven year old Shabnam is physically abused by her employer.
Shabnam has been working as a full-time domestic worker since the last year, but her employer has not paid Shabnam her wages. CHILDLINE has received this information through an anonymous caller. 13 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 1 . The CHILDLINE representative answering the telephone call must take down the address of Shabnam’s employer. 2. CHILDLINE must file a complaint with the police station nearest to the residence of Shabnam’s employer, and must in detail narrate the anonymous caller’s message. . A police officer is bound to take action if there is reasonable suspicion that an offence has been committed. A CHILDLINE representative must go along with the police to rescue Shabnam. Shabnam must be removed from the employer’s residence, and the employer must be arrested. 4. The police must record Shabnam’s statement. Shabnam should not be kept at the police station; she may be admitted to the Children’s Home or allowed to remain with CHILDLINE. 5. Shabnam must be produced before the Child Welfare Committee within 24 hours of her rescue.
CHILDLINE or any other suitable organisation may make an application before the Committee for temporary custody of Shabnam pending inquiry. 6. Attempts must be made to contact Shabnam’s parents. The Child Welfare Committee may hand over Shabnam to her parents if (a) Shabnam is willing to go with them, and (b) the parents are willing to care for Shabnam. The Committee may require the parents to execute a bond for the well-being of Shabnam. The travelling expenses of the parent, i. e. the lowest railway fare, is to be borne by the Superintendent of the Children’s Home if the parents are unable to bear the travelling expense.
The expense of the child’s journey home is also to be borne by the Superintendent. 7. If Shabnam cannot be reunited with her parents, CHILDLINE or any other suitable organisation should make an application before the Child Welfare Committee for the care and custody of Shabnam. The Committee may supervise the placement through a Probation Officer. 14 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 8. The employer has committed an offence of causing hurt, and withholding Shabnam’s salary. i) The first is an offence under the Indian Penal Code and is punishable with imprisonment which may extend to one year, or with fine which may extend to Rs. 1,000-, or with both. (ii) Exploitation of a child by an employer and withholding a child’s earning is an offence under Section 26 of the Juvenile Justice [Care and Protection of Children] Act, and is punishable with imprisonment which may extend to three years and fine. (iii) The employer is in charge of and has control over the juvenile, therefore the employer will also be liable for ‘cruelty to juvenile’ under Section 23 of the Juvenile Justice [Care and Protection of Children] Act.
Case No. 3 Shalini is working as a full-time domestic worker in Delhi. Shalini hails from a village in Madhya Pradesh. Shalini’s employers have not paid her any salary, and they beat her if she asks for payment of her salary. Shalini’s employers do not allow her to leave the house nor do they allow her to write to her family. Thirteen year old Shalini wants to return home to her family. 1 . 2. Replicate what has been mentioned in Case No. 2. In this case the employer has also committed the offence of wrongfully confining Shalini. Wrongful confinement means prevention from proceeding beyond certain limits.
Wrongful confinement is punishable under the Indian Penal Code with imprisonment for a term which may extend to one year or fine which may extend to Rs. 1,000/- or both. If the confinement is for three or more days the imprisonment may extend to two years. 15 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Case No. 4 Rita who is 14 years of age has been physically assaulted by her employers. Rita escaped from her employer’s residence and is now with her mother. Rita’s mother attempted to file a complaint with the concerned police station, but the police officer refused to record the complaint.
In case of a police officer refusing to record the complaint, 1 . Reduce the complaint in writing, and address it to the Senior Police Inspector of the concerned police station. Mention in the complaint the name of the police personnel who refused to record the complaint. Take the acknowledgement of receipt on your copy of the complaint. 2. If the police personnel refuses to take the written complaint, send the written complaint to the concerned Assistant Commissioner of Police, with a copy to the Deputy Commissioner of Police and the Commissioner of Police, or the concerned Superintendent of Police.
The complaint may be sent by registered post or by hand delivery. In case of hand delivery take acknowledgement of receipt on your copy of the complaint. 3. Advise Rita’s mother to get Rita medically examined at a Public Hospital, i. e. a government or corporation hospital, and to get the injury marks photographed by a professional photographer. Case No. 5 Shyam’s employer has misplaced Rs. 200/-, and suspects Shyam of having stolen the money. The employer informs the police of his suspicion. The police pick-up Shyam for interrogation.
The police torture him at the police station in order to force him to confess to having committed the offence. Shyam repeatedly 16 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 stated that he has not stolen the money. Shyam is later released by the police. Shyam is 15 years old. 1 . The police officers who have tortured Shyam are guilty of having committed an offence under Section 330 of the Indian Penal Code. This section deals with causing hurt to extort confession, or to compel restoration of property, and is punishable with imprisonment which may extend to seven years and fine. . CHILDLINE or any other organisation must file a complaint with the police station, and a copy of the complaint must be sent to the Commissioner of Police, Deputy Commissioner of Police and Assistant Commissioner of Police for information and necessary action. 3. CHILDLINE or any other organisation or individual should file a Writ Petition before the High Court for an order directing the offending police personnel to pay compensation for the physical injury and mental trauma caused to Shyam due to the illegal action of the police. [Refer to III (1995) CCR 470 (DB) : Rekha M.
Kholkar vs. State of Goa] Case No. 6 Six year old Santosh died at the residence of Mr. A with whom he was working as a full-time domestic worker since the last one year. Mr. A told the neighbours that Santosh was ill and had died of natural causes. Anand, a friend of Santosh who works for Mr. A’s neighbours told his employer that Santosh was made to work eighteen hours a day, and was given left-overs as food. 1 . Anand or Anand’s employer must be persuaded to immediately report to the concerned police station the manner in which Santosh’s employer used to treat Santosh. 2.
Santosh’s employer must be arrested for murder under Section 300 of the Indian Penal Code as he was definitely aware that starving Santosh was dangerous and in all probability would result in his 17 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 death. Murder is a non-bailable offence, and is punishable with death, or life imprisonment and fine. 3. If the body of Santosh has not been disposed of, the Post Mortem must be conducted. The Post Mortem Report will indicate the cause of death. 4. Murder is a cognizable offence, therefore the case will be prosecuted by the State through the Public Prosecutor.
It is necessary that CHILDLINE or some other organisation takes the responsibility of coordinating with the Public Prosecutor to know what is happening in Court. 5. If the employer files a bail application, CHILDLINE or some other organisation should ensure that the Public Prosecutor opposes the bail application, or an advocate may be appointed on the parents’ behalf to oppose the bail application. If the parents cannot be traced, CHILDLINE or any other organisation should appoint a watching advocate to make submissions before the Court to ensure that the employer is punished. . Successful prosecution will send a message to the public that child abuse is severely dealt with by the Courts and law enforcers, this will act as a deterrent to potential abusers. Case No. 7 Boys between the age of 9 to 12 years are working in a bidimaking unit in Jalgaon district. An organisation has made repeated representations to the Collector but no action has been taken. 1 . Under Article 24 of the Constitution, no child below the age of 14 years shall be made to work in any hazardous employment. 2. “Bidi-making” has been designated as a hazardous process at item No. 1) in Part B of the Schedule annexed to the Child Labour (Prohibition and Regulation) Act 1986. 18 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 3. CHILDLINE may undertake any of the following actions to stop this unlawful employment:a) File a complaint with the Inspector appointed under the Child Labour (Prohibition and Regulation) Act, and accompany him on his visit to the bidi-making unit. If children are found to be working at the unit, ensure that the Inspector files a complaint with the police or Magistrate of the First Class. ) CHILDLINE may file a complaint with the police. Accompany the police to the bidi-making unit. Panchnamas should be made. The police should file a complaint before the Magistrate of the First Class. c) CHILDLINE may directly file a complaint before the Magistrate of the First Class. d) CHILDLINE may bring this employment in contravention of the Child Labour (Prohibition and Regulation) Act to the notice of the High Court by filing a Public Interest Litigation. 4. Age of the child is of paramount importance. In the absence of proof of age, the child should be examined by a medical officer attached to a Public Hospital.
Such medical officer will issue a certificate in respect of age of the child. 5. The employer should be made to deposit a sum of Rs. 20,000/- in the Child Labour Rehabilitation-cum-Welfare Fund in case of each child employed in contravention of the Child Labour (Prohibition and Regulation) Act. This Fund is to be established for each district. The State Government must also provide a job to an adult member of the family, and if the same is not possible, the State Government is required to deposit a sum of Rs. 5,000/- with the Fund. 6.
In case of bonded labour, State Vigilance Committees have been established to monitor the implementation of the Bonded Labour 19 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 System (Abolition) Act 1976. The State Vigilance Committee includes as members, non-political social groups working at grass root levels. CHILDLINE should also keep the State Vigilance Committee informed, and ask them to intervene to stop child labour. Case No. 8 The caller witnessed ten year old Ramu being beaten by the Railway Police. Ramu was beaten as he was sleeping at the railway station.
Ramu told the caller that this was a daily occurrence, and often the boys paid money to the Railway Police to be allowed to sleep at the station. 1 . Efforts must be made to identify those Railway Police who are beating and harassing the boys. The name and designation of such Railway Police should be obtained. 2. A complaint with regards to the offending Railway Police must be filed with his Superior Officer. This complaint should mention the behaviour of the offending Railway Police in detail. The complaint should be made by the boys, including Ramu, or by CHILDLINE or any other organisation. 3.
The Railway Protection Forces Act 1957 provides for appointment of Railway Police Force to protect and safeguard railway property. Any Railway Police Force may be dismissed or suspended or reduced in rank due to improper or negligent discharge of duty. Such order for dismissal, suspension or reduction in rank may be passed by any Superior Officer. 4. A complaint may simultaneously be filed by the boys, including Ramu, or CHILDLINE or any other organisation against the offending Railway Police before the concerned police station as the Railway Police have acted in an illegal manner and are liable for criminal prosecution. 0 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Case No. 9 Twelve year old Shaikh was injured in a railway accident, and has lost a leg. Shaikh is a street child and due to the accident is not in a position to earn a living. 1 . CHILDLINE should assist Shaikh to file a claim before the Railways Claims Tribunal within one year of the accident. If the period of one year has elapsed, an application may be made to the Tribunal for condonation of delay. The application for condonation of delay must give reasons as to why the claim was not filed earlier.
The Tribunal has been established under the Railways Act 1989, and is required to assess damages to be paid in case of railway accidents to the injured or family of the injured. 2. The application for claim must be submitted tot he Registrar of the Railways Claims Tribunal in 4 sets alongwith relevant documents, such as railway tickets. If the railway ticket is lost or misplaced, an application for claim can still be filed but the burden of proof will rest on the applicant. The applicant will be required to prove that a railway ticket is purchased and subsequently lost. 3.
If a railway accident has resulted in death or grievous hurt, i. e. loss of limb, sight, hearing, permanent disfiguration of head or face, or fracture or dislocation of a bone or tooth, the same should be reported to the Station Master or railway servant. The accident should also be reported to the District Magistrate and Assistant Commissioner of Police / Superintendent of Police. An enquiry into the accident is to be conducted by the railway administration. Shaikh has lost a leg due to the accident, therefore the accident must be reported to the abovementioned authorities. 21
PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Case No. 10 Ravi has been caught eve-teasing at a railway station in Mumbai. Ravi is 19 years old, and has not acted in such manner in the past. 1 . Ravi will be produced before the Metropolitan Magistrate within 24 hours of arrest. An advocate may be appointed to file a bail application on behalf of Ravi. CHILDLINE must make arrangements for surety; the surety must bring his/her ration card, voters identity card, or some other proof of identification. 2. This offence is a bailable offence.
The police are empowered to release Ravi on personal bond or on bail, with or without surety. 3. If Ravi pleads guilty or is held guilty of having committed the offence, Ravi may be punished with imprisonment and fine. Ravi has been convicted for a first offence, therefore the Court has the discretion to levy a reduced fine without imprisonment. On payment of the fine Ravi will be immediately released. 4. Under the Railways Act 1989 if any person commits any nuisance or act of indecency or uses abusive or obscene language, he may be removed by any railway servant from the station, and may be punished with imprisonment and fine.
A railway servant is any person in service of the railway. Case No. 11 The aunt of Anu called to inform that Anu’s mother has fixed Anu’s marriage with a 40 year old widower. Anu is 14 years of age. 1 . The marriage of a male above 21 years of age with a girl under 18 years of age amounts to ‘child marriage’. Child marriage is an offence under the Child Marriage Restraint Act 1929. 22 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 2. The aunt of Anu should be advised to inform the mother of Anu that what she is attempting to do is an offence, and not in the interest of Anu. . The Court has the powers to restrain by an injunction a proposed child marriage from taking place. If Anu’s mother neglects to heed the aunt, the aunt should file such a case and prevent the marriage from being solemnised. CHILDLINE may itself file a case in the District Court and obtain an order restraining such marriage from taking place. It is an offence to go ahead with a child marriage that has been prevented by an order of the Court; the person disobeying the order is punishable with imprisonment or fine or both. 4.
If the marriage takes place prior to the aunt obtaining a restraining order, the aunt may file a complaint before the Metropolitan Magistrate or a Judicial Magistrate of the First Class. The husband of Anu is punishable with imprisonment which may extend to three months and fine. The priest who performs the marriage is also liable for punishment, the priest is supposed to verify the age of the parties before solemnising the marriage. 5. The object of the the Child Marriage Restraint Act is to prevent child marriage; it does not render a child marriage illegal or invalid. 6.
Under the Child Marriage Restraint Act, a woman who permits a child marriage to be solemnised is not punishable with imprisonment. Therefore, Anu’s mother is not liable for imprisonment though a child marriage has taken place with her knowledge and consent. Case No. 12 Meena is studying in standard IX. Meena was slapped by her teacher and hit on her head with four heavy registers. Meena due to this treatment has lost her hearing in the left ear. 1 . The parents or guardians should be persuaded to file a complaint 23 PDF created with FinePrint pdfFactory Pro trial version http://www. ineprint. com 1098 against the teacher with the police station, preferrably the police station nearest to the school. Meena should in detail tell the police what occurred. The police should record statements of witnesses, including other students and teachers who witnessed this treatment of Meena. 2. Insist that the police get Meena medically examined in a Public Hospital; ensure that the medical examination makes a special mention of Meena having lost her hearing in the left ear. 3. Make sure that the FIR records the offence under Section 322 of the Indian Penal Code, i. . voluntarily causing grievous hurt as Meena has lost her hearing in one ear. The punishment for such offence is imprisonment for a term which may extend to three years and fine. 4. A written representation should be made by the parents to the Principal and the Management of the school, with a request that disciplinary action be taken against the teacher. The teacher must be suspended pending the inquiry. The Parent Teacher Association must also be informed in writing of this incident. Case No. 13 Eight year old Mohan has been repeatedly physically abused by his father.
A neighbour has complained to the police, but Mohan and the mother who are frightened of the father / husband tell the police that the bruises are the result of a fall. 1 . The mother should be informed of the legal options she can avail of to protect her son from repeated abuse. Often an abusive father is also an abusive husband, but the mother fears retaliation at the hands of her husband. 2. The mother should be provided with legal and social support to file a police complaint. The police will arrest the father, but he will soon be released on bail as causing hurt is a bailable offence.
A CHILDLINE 24 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 representative should remain with Mohan and his mother at home. This is necessary if the father is released on bail and attempts to return home. 3. Persuade the police to keep Mohan’s father in the lock-up for a day. This will give sufficient time for the mother to move the Court for an injunction restraining the abusive father from entering the home. This case can be filed in the Family Court or a District Court, if a Family Court has not been constituted in that particular area. 4.
If the mother cannot be persuaded to take action against the husband, report the matter to the Child Welfare Committee with a request that Mohan be temporarily removed from the custody and influence of his parents. Such removal may result in ascertaining the true picture and protecting Mohan from further abuse. The future action that is decided by the Committee must depend on what is best for Mohan, and in consultation with Mohan. Case No. 14 The father of Leena is a procurer. Leena has six sisters. Leena is 13 years old. The father regularly sexually abuses Leena and her two elder sisters.
Leena has no mother. 1 . 2. The action to be taken in this case is twofold, viz. care of the children, and criminal prosecution of the father. CHILDLINE’s priority is to remove the children from the control of the father. CHILDLINE must file a complaint with the police station. The police should immediately arrest the father of Leena as he has committed offences under the Indian Penal Code and the Immoral Traffic (Prevention) Act 1956. 3. An assessment has to be made as to whether the children should be kept in the care of their relatives or taken to the Children’s Home.
The children should be consulted before taking any decision affecting the future of the children. 25 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 4. If the children require to be shifted to the Children’s Home, they should be produced before the Child Welfare Committee. Appropriate directions for their placement should be obtained from the Committee. It should be ensured that Leena and her sisters are placed in an institution where they will receive proper counselling to enable them to deal with the trauma of sexual abuse. 5.
The children should undergo medical examination in a Public Hospital. Their age should also be determined; a Birth Certificate is the best proof of age, otherwise a medical examination should be conducted to ascertain the age. 6. The father of Leena has committed the offence of rape under Section 375 of the Indian Penal Code. As he is known to procure girls for prostitution, he is also liable for punishment under Section 366-A of the Indian Penal Code which deals with procuration of minor girls, and Section 372 which deals with selling minor for purpose of prostitution.
These offences are non-bailable. 7. The father of Leena has also committed an offence under Section 5 of the Immoral Traffic (Prevention) Act which deals with procuring or attempting to procure a person, with or without consent, for the purpose of prostitution. This offence is punishable with imprisonment and fine. If the victim is a minor, the imprisonment may extend to 14 years. If the victim is a child, the imprisonment may extend to life. 8. CHILDLINE must ensure that the father is booked under the above provisions of law and that the children are taken care of by relatives.
The placement of children with relatives may also be done through the Child Welfare Committee, the Committee will be in a position to supervise the placement and ensure the well-being of the children. 26 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Case No. 15 Thirteen year old Monisha has been abducted from her village, and has been forced into prostitution. Monisha has been forced to give a share of her earnings to the procurer. Monisha was rescued during a brothel raid. 1 .
Monisha should be produced before the Child Welfare Committee, and be put in the care of a Protective Home or Children’s Home. A Protective Home is established under the Immoral Traffic (Prevention) Act for persons in need of care and protection. A Protective Home is to have facilities to enable the child / adult to be reintegrated into society. 2. CHILDLINE should ensure that steps are taken to contact Monisha’s parents at the earliest. Monisha must be reunited with her parents. The parents may be called upon to execute a bond for the wellbeing of Monisha. 3.
Ensure that the police take appropriate action against the procurer. The procurer is liable for punishment under the Indian Penal Code and the Immoral Traffic (Prevention) Act. As the accused has abducted and procured Monisha with the intent that she will be forced into sexual intercourse, he will be liable under Section 366 and 366-A of the Indian Penal Code. 4. The procurer will be liable under Section 5 of the Immoral Traffic (Prevention) Act for procuring a person. Under this Act it is an offence to live of the earnings of prostitution of another person.
Case No. 16 Six year old Sheila’s mother is a woman in prostitution. Sheila is a bright girl who is studying in day school. Sheila sleeps outside her mother’s room in the night. Sheila wants to study 27 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 in a boarding school, but her mother wants Sheila to remain with her. This problem cannot be resolved through legal intervention. CHILDLINE should speak with Sheila’s mother and convince her that admitting Sheila to a boarding school is in the interest of Sheila.
A boarding school in the vicinity should be identified so that Sheila is able to meet with her mother regularly. Sheila’s mother too should be offered an option that will enable her to leave prostitution and acquire a skill to ensure self-sufficiency. There are organisations which keep both mother and child together, such organisation should be identified so that Sheila is not separated from her mother. Case No. 17 Mauliq has identified Mr. A as taking young boys to his home and making them perform anal and oral sex. Mr.
A also photographs boys in the nude or performing sexual acts. The boys are also used for sexual gratification by the acquaintances of Mr. A for money. 1 . CHILDLINE should support Mauliq’s parents to file a complaint with the concerned police station. If Mauliq has no parents / guardians, Maulik should be supported to file the complaint. If Mauliq or his parents / guardians are frightened to report the matter to the police station, CHILDLINE should file the complaint. 2. The police should immediately enter upon the residence of Mr. A, and conduct a search of the residence.
All incriminating evidence should be seized by the police. Mr. A should be arrested. 3. Mr. A has committed offences under the Indian Penal Code, and the Immoral Traffic (Prevention) Act. 28 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 a. Indian Penal Code : (i) Section 377, i. e. sexual intercourse against the order of nature; sodomy and oral sex falls under this section, and is punishable with imprisonment which may extend to ten years and fine. This offence is non-bailable. (ii) Section 292, i. e. aking, producing or having in possession any obscene book, drawing or representation, and is punishable with imprisonment which may extend to two years and fine. b. The Immoral Traffic (Prevention) Act : This Act punishes a brothel keeper, a pimp and a procurer. Mr. A has committed offences under Sections 4, 5, 6 and 9 of the Act. (i) Section 4, i. e. living of the earnings of a prostitute. If earnings relate to the prostitution of a child or minor, the person shall be punishable with imprisonment between 7 to 10 years, and fine. (ii) Section 5, i. e. for procuring a person. (iii) Section 6, i. e. etaining a person in premises where prostitution is carried on. This offence is punishable with imprisonment for not less than 7 years but which may extend to life or for a term which may extend to 10 years, and fine. (iv) Section 9, i. e. aiding or abetting the seduction of a person by a person who has control over the victim. This offence is punishable with imprisonment for not less than 7 years but which may extend to life or for a term which may extend to 10 years, and fine. 29 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 4. Mauliq and the other boys must give evidence at the trial.
Inform the boys or their parents / guardians that if they fail to give evidence the case against Mr. A will fail. CHILDLINE must maintain contact with Mauliq and the other boys. Ensure that the statement of Mauliq and the other boys is properly recorded by the police. If Mauliq and the other boys are under 15 years of age, the police should record their statements at their respective homes and not call them to the police station for recording of statements. Case No. 18 Sexual abuse of 14 year old orphaned Meena in a Children’s Home established under the Juvenile Justice [Care and Protection of Children] Act.
The Superintendent of the Children’s Home has sexually abused Meena. The Child Welfare Committee functions from the said Children’s Home. 1 . The sexual abuse of Meena should be brought to the notice of the Child Welfare Commttee. The Committee should be informed of the sexual abuse in writing and they should be asked to take immediate action. 2. If the Child Welfare Committee fails to take immediate action and does not report the matter to the concerned police station, CHILDLINE or any other organisation should file a complaint with the concerned police station. . Meena’s statement should be recorded by the police, and she should be made to undergo medical examination at a Public Hospital. Ensure that Meena and the Superintendent’s clothes are seized by the police in the presence of panchas. Meena’s clothes should not be washed as they may contain forensic evidence to prove rape. 4. The Superintendent must immediately be arrested under Section 375 of the Indian Penal Code, i. e. rape. The punishment in this case will 30 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 e stricter as rape was committed by the staff of an Children’s Home on an inmate by taking advantage of his official position. This is a non-bailable offence. 5. Meena is 14 years of age, therefore the Superintendent cannot defend himself by stating that Meena had consented to sexual intercourse. If the girl victim is under 16 years of age, the question of her consenting does not arise. 6. Say ‘no’ to an offer by the Child Welfare Committee to conduct an in-house inquiry. This is a criminal matter of a serious nature, and mere dismissal or suspension of the Superintendent is not enough. 7.
If the police and the Child Welfare Committee refuse to take appropriate action, CHILDLINE or any other organisation should file a Public Interest Litigation before the High Court seeking investigation by the police and other directions in the interest of Meena and other children in the institution. 8. It is important to keep an eye on Meena, there have been instances of an abused child “disappearing” from the institution to hush-up the matter. Meena should be transferred to a place of safety. A place of safety would include putting Meena in the care of CHILDLINE or any other organisation having requisite facilities.
Case No. 19 Death of 3 year old Satish in a Children’s Home established under the Juvenile Justice [Care and Protection of Children] Act. An anonymous caller states that Satish died due to beating at the hands of a care-taker. The body of Satish has not been disposed of. 1 . The death of Satish should be brought to the notice of the concerned police station by CHILDLINE. CHILDLINE should also inform the police about the anonymous caller. 31 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 2.
The police should immediately take charge of Satish’s body, and a post mortem examination must be held. 3. The police should immediately initiate the investigation. The Superintendent and management should also be informed about the anonymous call, and CHILDLINE should demand that the care-taker be suspended pending inquiry. This is very essential for a fair investigation, the other inmates may be afraid to speak freely if the care-taker is on the premises. 4. The parents / guardian of Satish must be contacted, and the Superintendent must wait for 24 hours before disposing of the body.
The body must be disposed in accordance with the religion professed by the child. 5. In case of death of a child in an institution the following procedure must be followed :(i) Natural death : the Superintendent must obtain a report from the medical officer denoting the cause of death, and a written intimation about the death must be given to the concerned police station, the Civil Surgeon and the District Magistrate. If a child dies within 24 hours of admission, a post mortem examination must be held. ii) Sudden or violent death, or death due to accident : the Superintendent and medical officer must be informed, and the body of the child should be left in the position in which it was found. The concerned police station should be informed of the death, and a post mortem examination must be held. If the institution does not follow the above procedure, their inaction should be viewed suspiciously, and the matter should be investigated. 32 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Case No. 20 Ten year old Rani was raped by three of her neighbours.
Rani’s parents have called CHILDLINE for help. 1 . The parents must be referred to an advocate. This is important because any wrong step at this initial stage could destroy material evidence. 2. The parents must report the matter to the concerned police station at the earliest. An advocate and child psychologist will be of assistance at the time of recording of complaint. The child psychologist will be of great support to Rani who has undergone tremendous trauma, and the presence of an advocate usually ensures that the statement is properly recorded by the police.
A copy of the First Information Report must be furnished to the parents. 3. The three neighbours must immediately be arrested, and their clothes should be seized by the police in the presence of panchas. Seizure of clothes is very important as forensic examination may indicate semen marks. 4. Rape is a non-bailable offence. Punishment for rape committed on a girl below 12 years of age and gang rape is dealt with more severely under the Indian Penal Code. The punishment is imprisonment for a term not less than 10 years but which may be for life, and fine. 5.
The police should get Rani medically examined by the Police Surgeon or at a Public Hospital. If the police fail to get Rani medically examined, the parents or CHILDLINE should ensure that she is medically examined at a Public Hospital at the earliest. The parents must obtain a copy of the report of the medical examination. 6. The clothes of Rani must also be seized by the police in the presence of panchas. Advise the parents not to wash the clothes worn by Rani at the time when the rape was committed. 33 PDF created with FinePrint pdfFactory Pro trial version http://www. ineprint. com 1098 7. Ensure that a ‘spot panchnama’ is conducted. This panchnama will indicate the site of the offence. 8. The matter will be prosecuted by the State and conducted by the Public Prosecutor. CHILDLINE and the parents must develop a rapport with the Public Prosecutor. The parents may appoint an advocate to oppose bail application, or at the trial stage. The parent’s advocate may assist the Public Prosecutor, or may tender written submissions to the Court. 9. It is necessary for a team of experts to prepare Rani to give evidence before the Court.
Under the Indian legal system, Rani is compelled to give evidence in the presence of the accused and will be crossexamined by the advocate for each of the accused at great length. If Rani is unable to find the right words to express herself, it will be looked upon as a deficiency on her part. Case No. 21 Six year old Jack was caught stealing fruit from a fruit vendor, and has been arrested by the police. 1 . CHILDLINE, preferably along with an advocate should visit the concerned police station to ensure that Jack is immediately released. 2.
Under Section 82 of the Indian Penal Code, nothing is an offence that is done by a child under 7 years of age. Therefore, 6-year-old Jack cannot be penalised for his action. 3. The above immunity is also applicable in respect of offences under other laws. Therefore, Jack should not be treated as a juvenile in conflict with law under the Juvenile Justice [Care and Protection of Children] Act. 4. The custody of Jack should be handed over to his parents / guardian. 34 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 5.
If Jack has no parents / guardian or if his parents / guardian are not willing to care for him, Jack will be required to be produced before the Child Welfare Committee as a ‘child in need of care and protection’. CHILDLINE or any other suitable organisation may make an application before the Committee for custody of Jack. The Committee may supervise the placement of Jack through a Probation Officer. Case No. 22 Ten year old Rahul has been caught chain-snatching, and has been arrested by the police at 6. 00 p. m. 1 . CHILDLINE, preferrably with an advocate should visit the concerned police station.
A child, i. e. a boy or girl below 18 years of age cannot be detained in a police station or jail under the Juvenile Justice [Care and Protection of Children] Act. Therefore, Rahul must be shifted for the night to an Children’s Home, or given into the custody of CHILDLINE or any other suitable organisation, on such organisation undertaking that Rahul will be brought to the police station the next day for production before the Juvenile Justice Board. 2. The parents / guardian of Rahul must immediately be informed of his arrest.
It is the duty of the concerned police station to inform Rahul’s parents and ask them to remain present before the Juvenile Justice Board on the next day. 3. Under Section 83 of the Indian Penal Code, nothing is an offence which is done by a child above 7 years of age and below 12 years, who has not attained sufficient maturity of understanding to judge the nature of his act. It is for the Juvenile Justice Board to decide whether Rahul was aware of the nature and consequences of his act; if the Juvenile Justice Board decides this issue in the negative, Rahul will immediately be discharged. 5 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 4. Even if Rahul is found to have attained sufficient maturity to judge the nature and consequences of his act, he will be released on bail by the Juvenile Justice Board. Rahul will have to attend the inquiry before the Juvenile Justice Board. 5. The Juvenile Justice Board must complete the inquiry within 4 months. On completion of the enquiry the Board can only pass the following orders; (i) advise or admonish Rahul; ii) Rahul may be released on probation of good conduct and placed under the care of parents / guardian / fit person, on such parents / guardian / fit person executing a bond for the good behaviour and well-being of the child for a period not exceeding 3 years; (iii) Rahul may be released on probation of good conduct and placed under the care of a fit institution for the good behaviour and well-being of the child for a period not exceeding 3 years; (iv) Rahul may be sent to a Special Home for a period until he/she ceases to be a juvenile, or in the case of a juvenile over 17 years of age and below 18 years for a period not exceeding 2 years.
A juvenile can never be punished with death, life imprisonment or imprisonment. 6. Under the Probation of Offenders Act 1958 and section 360 of Cr. P. C. , the Courts have been given the powers to release offenders under 21 years of age after due admonition or on probation if found guilty of an offence punishable with imprisonment, not being life imprisonment. This Act provides young offenders with an opportunity to reform themselves especially if there is no criminal history. 36 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Case No. 23 Two year old Seema was found crying on the streets.
Seema is not able to give her address nor is she able to give her parent’s names. Seema wants to be reunited with her parents. 1 . Immediately produce Seema before the nearest police station, and file a Missing Person Report. The police station has means to find out whether any complaint has been filed by Seema’s parents in that particular city or elsewhere in the country. 2. A complaint should also be filed with the Missing Persons Bureau. The office of the Missing Persons Bureau is generally situated at Police Headquarters. 3. Seema should also be produced before the Child Welfare Committee.
CHILDLINE or any other suitable organisation may be given temporary custody of Seema. 4. Seema should be medically examined in a Public Hospital. The medical report will indicate Seema’s health status when she was taken into custody by CHILDLINE or any other organisation. 5. Seema’s description, along with her photograph, and the place where she was found should be published in the newspaper and shown on television on the ‘missing persons’ programme. The Child Welfare Committee will direct the aforesaid publication and telecast, but CHILDLINE should ensure that the same is accordingly published / telecast. 6.
To be effective, the details of missing children should be published in widely circulated newspapers and telecast at prime time to ensure wide publicity. 7. A child psychologist could play an important role in getting information from the child. This information could be of assistance to the police and the Child Welfare Committee in tracing the child’s parents. 37 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Case No. 24 A mother frantically has called for advice as her 7 year old son Mohit has not returned home from play. 1 . A complaint should be filed with the nearest police station.
A detailed description of Mohit should be given to the police. The police should also be told where Mohit was last seen, and the suspects, if any. The complaint should be filed with the police station within whose jurisdiction the child was last seen or the child resides. 2. A complaint should also be filed with the Missing Persons Bureau. The office of the Missing Persons Bureau is generally situated at Police Headquarters. 3. Missing Persons Bureau gets a daily report from all police stations with regards to complaints filed in search of missing and lost persons who are unable to find their bearings.
It works like a “lost and found” bureau. Missing Persons Bureau also receives information from Public Hospitals with regards to injured persons or dead bodies in their establishment. 4. Missing Persons Bureau also telecasts on Doordarshan the photograph of the missing child. They require a 10″X12″ photograph of the child for telecast, and two passport size photographs for their record. Case No. 25 Fourteen year old Sam has run away from his home in Delhi as he did badly in his exams. Sam got into a train and has arrived in Calcutta. Sam wants to return home but is frightened of his parent’s reaction. . Get in touch with Sam’s parents in Delhi, and ask them to come and fetch Sam. 38 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 2. CHILDLINE or a suitable organisation may keep Sam with them until the parents arrive to fetch him. There is no need to contact the police or the Child Welfare Committee. 3. A counsellor should speak to Sam, and his parents to ensure that such an incident does not repeat itself. Case No. 26 Six year old Mohsin is found on the pavement with very high temperature.
Mohsin was medically examined and found to be HIV positive. 1 . Mohsin must be admitted to a hospital to treat and bring in control the high temperature. 2. 3. Mohsin also requires counselling with regards to his HIV status. On discharge from hospital, Mohsin must be kept in the care and custody of an organisation having residential facilities as Mohsin requires special care. Mohsin should not remain on the streets where he could easily catch an infection. Such placement could be done directly or through the Child Welfare Committee Case No. 27
A residential institution suspects 15 year old Ashok to be HIV positive and wants to test him for such infection. 1 . Mandatory compulsory testing for HIV is prohibited under the policy framed by National AIDS Control Organisation (NACO). HIV testing must be done voluntarily and with informed consent. This policy also stresses pre-test and post-test counselling. 2. HIV testing of Ashok should be conducted in accordance with the NACO policy, especially as Ashok is old enough to give informed consent to the tests being conducted. 39 PDF created with FinePrint pdfFactory Pro trial version http://www. ineprint. com 1098 3. In case of a very young child unable to understand the consequences, the parent / guardian should give consent for the testing or the organisation having care of the child should ensure that the testing is conducted in accordance with the NACO policy. Case No. 28 Six year old Arjun is lying outside a Public Hospital in a semiconcious state. Arjun was admitted to the Public Hospital by the police as he was found very sick on the roadside. Arjun was discharged from the Public Hospital as he tested positive to AIDS. 1 .
A Public Hospital is bound to treat a patient, and cannot refuse treatment on any ground. 2. Under Article 14 of the Constitution all persons have an equal right to receive treatment in a Public Hospital, i. e. a government or corporation hospital. Further, right to health is guaranteed under Article 21 of the Constitution. 3. In Pt. Parmanand Katara vs. Union of India ; Ors. [AIR 1989 S. C. 2039], the Supreme Court held that every doctor whether at a Public Hospital or otherwise has the professional obligation to provide medical services with due expertise for protecting life. 4.
A written representation should be immediately made to the Dean of the hospital and the Directorate of Health Services; the name of the person refusing to admit Arjun should be mentioned along with other details, such as date, time, etc. 5. A writ petition can also be filed before the High Courts on the ground that an individual has a right to avail of public services and a government agency has arbitrarily refused to perform its duty. 40 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Case No. 29 Nine year old Wasim is a street child and is very sick.
Wasim’s friends have tried to admit Wasim to a Public Hospital for treatment, but the hospital refuses to admit or treat Wasim. 1 . A Public Hospital is legally bound to admit and treat Wasim for his ailment. 2. A written representation should be immediately made to the Dean of the hospital; the name of the person refusing to admit Wasim should be mentioned along with other details, such as date, time, etc. 3. Under Article 14 of the Constitution all persons have an equal right to make use of public services. Further, right to health is guaranteed under Article 21 of the Constitution. . Reference should also be made to the judgment passed by the Supreme Court in Pt. Parmanand Katara vs. Union of India & Ors. [AIR 1989 S. C. 2039]. Case No. 30 Fifteen year old Rohan is severely injured in a fight. The hospital refuses to admit or treat him until a complaint is lodged with the police. 1 . A hospital’s duty is to first provide medical-aid. The primary function of doctors / hospitals is to save a life. This duty is cast upon both public and private hospitals. 2. Legal procedures should follow medical treatment, and should not interfere with the saving of a life.
This has been held by the Supreme Court in Pt. Parmanand Katara vs. Union of India ; Ors. [AIR 1989 S. C. 2039]. 41 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 3. The cause of injury should be of no concern to the hospital. Hospitals must provide the best treatment at their disposal to save a life. It does not matter whether the life is that of a rich man or poor man, a priest or a murderer. Case No. 31 A dead body of a boy child is found on the roadside. 1 . Inform the nearest police station about the dead body lying on the roadside.
The police should be informed of the address / location where the body is lying, or 2. The Police Control Room should be contacted at telephone No. 100, and informed about the body lying on the roadside along with other relevant details. Case No. 32 Twelve year old Imran was hit by a speeding car. The motorist drove away, but a member of the public has noted the registration number of the car. Imran lost a leg due to the accident, and he was in hospital for over a month. Imran lives on the streets with his friends. 1 . A police complaint must immediately be lodged with the nearest police station as soon as the accident occurs.
The registration number of the car should be mentioned in the complaint. If for whatever reason a police complaint has not been immediately lodged, a complaint should be lodged at the earliest, preferably with the police station within whose jurisdiction the accident occurred. 2. An advocate should be contacted at the earliest for filing a case before the Motor Accident Claims Tribunal. The case before the Tribunal has to be filed by the injured person or his advocate. As Imran is a minor, the case may be filed by a representative of CHILDLINE or any other 42
PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 suitable adult, or an advocate appointed by CHILDLINE or the suitable adult. The Tribunal awards compensation to the victim of the accident; the amount of compensation depends upon the nature of injury and the disablement caused due to the injury. 3. The Motor Accident Claims Tribunal has the power to provide for ‘no fault liability’. No fault liability is a fixed amount which the accident victim or his/her dependants are entitled to without proving the fault of the driver.
In case of death, the no fault liability is Rs. 15,000/, and in case of permanent injury it is Rs. 7,5000/-. Imran is entitled to no fault liability of Rs. 7,500/-. The remaining compensation will be granted to Imran only if the fault of the driver is proved. 4. Where the offending vehicle is not traceable, Rs. 5,000/- will be paid to the dependants of the deceased and Rs. 1,000/- to the accident victim who has suffered grievous injury. Case No. 33 Fourteen year old Preeti’s father recently died in Mumbai. Preeti’s mother died three years ago.
The father’s employer is asking Preeti to produce a guardianship certificate for payment of the legal dues of her father. 1 . Preeti is entitled to the legal dues of her father. Preeti is the legal heir of her deceased father in accordance with the Hindu Succession Act 1956. If Preeti has any brothers or sisters, all the children will be entitled to an equal share in the legal dues of the deceased. 2. A relative or friend of Preeti must file a Guardianship Petition before the Bombay High Court under the Guardian and Wards Act 1890 for being appointed as guardian of the person and property of Preeti.
The Court while appointing the guardian will direct the employer to deposit the legal dues of Preeti’s father with the Accounts Officer, High Court, and the Accounts Officer will be directed to invest the 43 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 amount so deposited in a Fixed Deposit with any nationalised bank. The interest accrued on the Fixed Deposit may be withdrawn by the guardian for maintenance and education of Preeti. The principal amount will be handed over to Preeti on her attaining 21 years of age. 3.
In the event of a natural calamity rendering a large number of children orphans, the ex-gratia payment / shelter provided by the government requires safeguarding till the children attain majority. The Collector is generally appointed by Government Resolution to ensure that the ex-gratia payment / shelter is not misappropriated by relatives. The ex-gratia payment / shelter will stand in the joint names of the child and the Collector, and will be handed over to the child on the child attaining majority. Case No. 34 Ten year old Pramod is blind, and is living on the streets.
Pramod wants to study, but does not have the money to pay his school fees. 1 . Blindness is a disability under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995. 2. Under this Act, the State Government and the local authority is to ensure that every child with disability has access to free education till the age of 18 years. It is mandatory for the State Government or the local authority to establish special schools in government and private sectors, or take measures to integrate children with disabilities in normal schools. . Schemes are to be formulated for providing transport facilities, supply of books, etc. to the disabled, and provide employment opportunities for persons with disabilities. 44 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 4. CHILDLINE should identify an appropriate school for Pramod’s education. If no appropriate school can be identified, a representation must be made to the State Government and the local authority, i. e. the municipal corporation, for identifying an appropriate school for Pramod. 5.
A representation should also be made to the Commissioner appointed by the State Government under the Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. The Commissioner is to ensure implementation of the Act; any complaint with regards to deprivation of rights of persons with disabilities, etc. is to be made before the Commissioner. 6. CHILDLINE or any other organisation or individual may file a Public Interest Litigation in the High Court if there are no appropriate schools and facilities for children with disability.
The High Court will direct the State Government or the local authority to establish schools for children with disability. NGOs must monitor and ensure that the government is performing its duties towards children. If the government is failing in its duties, NGOs and individuals must take effective legal and other steps to protect and promote the rights of children. A single Public Interest Litigation could improve the lives of thousands of children all over the country. Case No. 35 Three year old Shweta is residing with her mother. The mother is mentally disabled and not in a position to care for her daughter. 1 .
Make all attempts to contact the relatives of Shweta so that Shweta can remain with them whilst her mother is being treated for her mental disability. 45 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 2. If no relative can be traced, Shweta should be produced before the Child Welfare Committee as “a child in need of care and protection” and admitted to a Children’s Home being managed by the State Government or a voluntary organisation. 3. The mother of Shweta should be admitted for treatment to a psychiatric hospital or nursing home in accordance with Section 19 of the Mental Health Act 1987.
Ensure that the mother of Shweta is discharged on completion of treatment and reunited with her daughter. Case No. 36 A 6 year old boy has been found on the streets. The boy seems mentally disabled and unable to care for himself. 1 . Steps should be taken to trace the parents / guardians of the boy. The boy could be lost and therefore roaming the streets. If the boy child is restored to his parents / guardians, ensure that he undergoes appropriate tests and receives treatment for his mental disability. 2.
If the parents or guardians cannot be traced, get the boy child medically examined by a medical officer attached to the Psychiatry Department of a Public Hospital. Future action will depend upon the results of the medical test. 3. On being diagnosed with mental disability, produce the boy child before the Child Welfare Committee and ensure that he is admitted to an institution with appropriate treatment and rehabilitation facilities. CHILDLINE should visit the boy child at the treatment facility to monitor his well-being. Case No. 37
The mother of 10 year old Trupti is seeking a divorce on the ground of cruelty. Trupti’s mother works as a part-time domestic worker, and her father is employed as a sweeper with the 46 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Municipal Corporation. Trupti is concerned about her and her 4 year old brother’s future. They do not want to reside with their father who is a drunkard and beats them. 1 . Custody and maintenance of children is governed by the personal law, i. e. it depends on the religion professed by the parties.
In the above case the parties are Hindus, therefore the provisions of the Hindu Marriage Act 1955 will apply. 2. Section 26 of the Hindu Marriage Act deals with “custody of children”, and provides for maintenance and education of children. At the time of passing of the order, the Court is to take into account the wishes of the children, the income and conduct of the parties. 3. Trupti’s mother will be given custody of the children on her proving that her husband is unfit to care for the children. The Court may ascertain the preference of the child, and consider such preference before passing any order with regards to custody. . Further, the Court will direct the father to pay an amount towards maintenance of the children and wife. The wife is not in a position to maintain herself and her children from the salary she earns as a domestic worker. If the father fails to pay the maintenance, the Court will order the employer to deduct the maintenance amount from the salary of the father and pay the maintenance amount directly to the mother. 5. A Hindu father is also bound to maintain his children under the Hindu Adoptions and Maintenance Act 1956. Case No. 38 Fifteen year old Bahadur requires a Domicile Certificate. . A domicile certificate is granted to a person who has been residing in that particular State for at least 10 years. 47 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 2. A domicile certificate is granted to an adult or to the father of a child. In the absence of a father, a domicile certificate will be granted to the mother of a child. 3. An application for a domicile certificate is to be made before a Metropolitan Magistrate or an Additional Magistrate or a Magistrate of the First Class. Requisite court-fees have to be affixed on the application.
The application is to be accompanied with proof of residence, viz. ration card, school leaving certificate, birth certificate, electoral roll. 4. A domicile certificate is ordinarily issued within a month of having applied for it. Case No. 39 A Hindu parent wants to adopt a child, and has inquired about the procedure with regards to adoption. 1 . All adoptions are to be done through a Recognised Adoption Agency [RAA]. Adoption through doctors and nursing homes is prohibited. 2. The parent should get in touch with a RAA in his/her city. Information of RAA in a particular city is available on www. doptionindia. nic. in. 3. RAA will screen the adoptive parents and prepare them for taking a child in adoption. The parent must be told about the implications of adoption, and the different issues involved. A home study of the adoptive parents is also conducted. 4. RAA maintains contacts with adoptive family for 2 years after the adoption is completed. 5. 6. Priority is given by RAA to Indian adoptive parents. Legal procedure in case of in-country adoption; (a) the adoptive parent must apply for adoption to RAA, 48 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 b) a Scrutiny Agency [SA] which is an independent authority constituted by the State Government is to screen the documents for adoption, (c) the documents for adoption include, birth certificate, marriage certificate, health certificate, photographs, recommendation letters, employment certificate, bank reference, property statement, child-care arrangements, and undertaking from family members or friends that they will temporarily care for children in case of death of adoptive parents, (d) a petition is to be filed before the District Court, and on the report of SA an order of adoption may be granted, (e) post-placement follow-up is done by RAA. Case No. 40 An organisation is in custody of an abandoned child and wishes to give such child for adoption. 1 . A child is legally free for adoption if the child has been abandoned, orphaned or is destitute. In many cases, unwed mothers surrender their child for adoption. In such case, a “document of surrender” must be prepared. The mother is counseled and given a 2 month period to re-think her decision. 2. The organisation should approach a RAA in its city to carry out the adoption procedure. 3. 4. In-country adoption is preferred to inter-country adoption.
Legal procedure in case of inter-country adoption; (a) RAA must make all efforts to find an Indian adoptive parent. If unable to find such parent, the case should be referred to Voluntary Coordinating Agency [VCA], 49 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 (b) VCAs are to be constituted by respective State Governments. VCA must give clearance for inter-country adoption, i. e. should categorically state that no adoptive parent could be found for a particular child despite considerable efforts, (c) a “no objection certificate” is to be obtained from the Central Adoption Resource agency [CARA], (d) an adoption agency recognised by Government of India is to be approached to identify oreign adoptive parents for such child, (e) once adoptive parents are identified, the SA is to screen the documents for adoption, (f) a petition is to be filed before the High Court, and on the report of the foreign adoption agency and SA an order for adoption may be passed, (g) post-placement follow-up is done by CARA. Case No. 41 Ms. Emily D’Souza, an Indian Christian wants to take a child in adoption. 1 . 2. Ms. D’Souza must apply to RAA for a child. On identification of a child, Ms. D’Souza must file a Guardianship Petition under the Guardian and Wards Act before the High Court or District Court. 3. The District Court or High Court will pass an order appointing Ms. D’Souza as guardian of the child. 4. Ms.
D’Souza may file a miscellaneous application in the Guardianship Petition for adoption of the child after 2 years from date of guardianship order. 50 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 5. 6. The adopted child will have the same rights of a natural born child. This procedure is applicable to adoptive parents professing the Christian, Muslim, Parsi and Jew faith, and wishing to take a child in adoption and residing within the jurisdiction of the Bombay High Court, viz. Mumbai, Goa, and Dadra ; Nagar Haveli. Case No. 42 Five years old Mirza was abducted from a village in Andhra Pradesh and brought to Mumbai for the purpose of begging.
For the last two years Mirza alongwith other boys has been engaged in begging, the collection at the end of the day is handed over to “ dada” . Mirza wants to be freed from this begging racket. 1 . Use of a child for begging is an offence under Section 24 of the Juvenile Justice (Care and Protection of Children) Act. A complaint may be filed before the Child Welfare Committee who on being satisfied that such offence has been committed, shall punish the offender with imprisonment for a term which may extend to 3 years and with fine. 2. Kidnapping a minor for purpose of begging is also an offence under Section 363 A of the Indian Penal Code and is punishable for a term which may extend to 10 years and with fine. 3.
CHILDLINE must assist Mirza in filing a complaint with the Police Station within whose jurisdiction “dada”operates. 4. This offence is cognizable and non-bailable. The Police on filing of the complaint must registrer F. I. R. and arrest “dada” . 51 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 PART II This Part of the book summarises certain laws and judgments related to children in order to enable the CHILDLINE volunteer to deal with the queries in a comprehensive manner. Constitution of India The Constitution contains provisions in respect of children under Part III of the Constitution, i. e. Fundamental Rights, and Part IV of the Constitution, i. e.
Directive Principles. Article 14 : Equality before law, i. e. equal treatment and protection under law. All children in similar circumstances are required to be treated in a similar manner, and if not so treated, such treatment can be challenged on the ground of discrimination and arbitrariness. Article 15(3) : Permits the State to make special provisions for women and children. Special enactments made for the benefit of children cannot be struck down on the ground of discrimination. Article 19(1) : Guarantees citizens of India the right to freedom of speech and expression, to form associations or unions, to move freely throughout the territory of India, etc.
Under Indian law, child labour is prohibited only in factories, mines or other hazardous employment, therefore there is no blanket ban on employment of children. Though children form part of the labour force they are not permitted to unionise and fight for their rights as workers. 52 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Article 21 : This article guarantees the right to life to all persons. The Supreme Court has interpreted “right to life” to include right to food, clothing, adequate shelter, and other basic necessities of life. Article 22 : Provides for safeguards upon arrest, and states that a person should be produced before the nearest Magistrate within 24 hours of arrest.
A juvenile in conflict with law or a child in need of care and protection should be produced before the Competent Authority established under the Juvenile Justice [Care and Protection of Children] Act 2000 within 24 hours of having been pickedup by the police. Article 23 : Prohibits trafficking in human beings and forced labour. Any contravention of this provision is punishable under law. Article 24 : Prohibits the employment of a child below 14 years in any factory or mine or any other hazardous employment. Article 39(e) ; (f) : The State is required to ensure protection of children of tender age from abuse, and from entering vocations unsuited to their age and strength. Children are also to be provided with equal opportunities and facilities to develop in a healthy manner. The State is to further ensure that childhood and youth are protected against exploitation and abandonment.
Article 41 : The State is required to take steps to secure educational opportunities and facilities. 53 PDF created with FinePrint pdfFactory Pro trial version http://www. fineprint. com 1098 Article 44 : The State is to endeavour to secure for all citizens a uniform civil code. A uniform civil code implies a uniform legal framework for adoption of a child applicable to all religions. Article 45 : The State is to take measures to ensure free and compulsory education for all children till they attain 14 years of age. Article 47 : The improvement of public health and the raising of the level of nutrition is a primary duty of the State. Article 51(c)