A Paper on `Child Abuse and its measures & a Biblical Response by

Rev. Dr. L. K. Mruthyunjaya, Director, Swanthana Seva Samithi, Ongole, Prakasam District

Child abuse is a global problem that is deeply rooted in cultural, economic and social practices. It is a
state of emotional, physical, economic and sexual maltreatment meted out to a person below the age
of eighteen and is a globally prevalent phenomenon. However, in India, as in many other countries,
there has been no understanding of the extent, magnitude and trends of the problem. The growing
complexities of life and the dramatic changes brought about by socio-economic transitions in India
have played a major role in increasing the vulnerability of children to various and newer forms of
abuse. Child abuse has serious physical and psycho-social consequences which adversely affect the
health and overall well-being of a child.
1. CHILD ABUSE BASIC DEFINITIONS
Child abuse or maltreatment constitutes all forms of physical and/or emotional ill-treatment, sexual
abuse, neglect or negligent treatment or commercial or other exploitation, resulting in actual or
potential harm to the childs health, survival, development or dignity in the context of a relationship
of responsibility, trust or power. (World Health Organization)
"Any recent act or failure to act on the part of a parent or caretaker, which results in death, serious
physical or emotional harm, sexual abuse, or exploitation, or an act or failure to act which presents an
imminent risk of serious harm" (The Child Abuse Prevention and Treatment Act CAPTA)
Child abuse is a very complex and dangerous set of problems that include child neglect and the
physical, emotional, and sexual abuse of children. (MedicineNet.com)
Child abuse is the physical and/or psychological/emotional mistreatment of children. (Wikipedia)
Institutional Abuse or Neglect is that which occurs in any facility for children, including, but
not limited to, group homes, residential or public or private schools, hospitals, detention and
treatment facilities, family foster care homes, group day care centers and family day care
homes. (Office of Health and Human Services, US)
2. CHILD ABUSE LOCAL STATISTICS
(As per the Study on Child Abuse India 2007 by Ministry of Women and Child Development, Govt. of
India)
India is home to almost 19 percent of the world's children. More than one third of the country's
population, around 440 million, is below 18 years. According to one assumption 40 percent of these
children are in need of care and protection, which indicates the extent of the problem. In a country
like India with its multicultural, multi-ethnic and multi-religious population, the problems of socially
marginalized and economically backward groups are immense. Within such groups the most
vulnerable section is always the children.

`Child Abuse and its Protection measures & a Biblical Response

Major Findings: It has very clearly emerged that across different kinds of abuse, it is young
children, in the 5-12 year group, who are most at risk of abuse and exploitation.
# Physical Abuse
1. Two out of every three children were physically abused.
2. Out of 69% children physically abused in 13 sample states, 54.68% were boys.
3. Over 50% children in all the 13 sample states were being subjected to one or the other form of
physical
abuse.
4. Out of those children physically abused in family situations, 88.6% were physically abused by
parents.
5. 65% of school going children reported facing corporal punishment i.e. two out of three children
were
victims of corporal punishment.
6. 62% of the corporal punishment was in Goverment and municipal school.
7. The State of Andhra Pradesh, Assam, Bihar and Delhi have almost consistently reported higher
rates
of abuse in all forms as compared to other states.
8. Most children did not report the matter to anyone.
9. 50.2% children worked seven days a week.
# Sexual Abuse
1. 53.22% children reported having faced one or more forms of sexual abuse.
2. Andhra Pradesh, Assam, Bihar and Delhi reported the highest percentage of sexual abuse among
both
boys and girls.
3. 21.90% child respondents reported facing severe forms of sexual abuse and 50.76% other forms of
sexual abuse.
4. Out of the child respondents, 5.69% reported being sexually assaulted.
5. Children in Assam, Andhra Pradesh, Bihar and Delhi reported the highest incidence of sexual
assault.
6. Children on street, children at work and children in institutional care reported the highest incidence
of
sexual assault.
7. 50% abuses are persons known to the child or in a position of trust and responsibility.
8. Most children did not report the matter to anyone.
# Emotional Abuse and Girl Child Neglect
1. Every second child reported facing emotional abuse.
2. Equal percentage of both girls and boys reported facing emotional abuse.
3. In 83% of the cases parents were the abusers.
4. 48.4% of girls wished they were boys.
3. TYPES OF ABUSE
Child abuse happens in many different ways, but the result is the same- serious physical or
emotional harm. Physical or sexual abuse may be the most striking types of abuse, since they
often unfortunately leave physical evidence behind. However, emotional abuse and neglect are
`Child Abuse and its Protection measures & a Biblical Response

serious types of child abuse that are often more subtle and difficult to spot. Child neglect is the
most common type of child abuse.
1. Physical
Physical Abuse of a child is that which results in actual or potential physical harm from an
interaction or lack of an interaction, which is reasonably within the control of a parent or person in a
position of responsibility, power or trust. Such injury or incidence is considered abuse regardless of
whether the caretaker intended to hurt the child. There may be single or repeated incidents.
Physical abuse includes but is not limited to the following:
Punishing a child excessively
Forcing a child to work in poor working
Smacking, punching, beating, shaking, kicking, conditions, or in work that is inappropriate for a
biting, burning, shoving, choking, throwing, childs age, over a long period of time
stabbing, grabbing
Gang violence
Hitting a child (with a hand, stick, strap, or Harmful initiation ceremonies
other object)
Bullying
Leaving a child in an uncomfortable and/or Threatening to harm someone
undignified posture for an extended period of
time or in a poor environment
Signs of Physical Child abuse:

Physical signs. Sometimes physical abuse has clear warning signs, such as unexplained bruises,
welts, or cuts. While all children will take a tumble now and then, look for age-inappropriate
injuries, injuries that appear to have a pattern such as marks from a hand or belt, or a pattern of
severe injuries.
Behavioral signs. Other times, signs of physical abuse may be more subtle. The child may be
fearful, shy away from touch or appear to be afraid to go home. A childs clothing may be
inappropriate for the weather, such as heavy, long sleeved pants and shirts on hot days.
Caregiver signs. Physically abusive caregivers may display anger management issues and
excessive need for control. Their explanation of the injury might not ring true, or may be different
from an older childs description of the injury.

2. Emotional
Emotional Abuse is a pattern of behavior that impairs a child's emotional development or sense of
self-worth. Emotional abuse is often difficult to prove and, therefore, Child Protection
System(CPS) may not be able to intervene without evidence of harm to the child. Emotional abuse
is almost always present when other forms are identified. Physical abuse includes but is not limited
to the following:
Isolating or excluding a child
Treating or looking at a child with disdain,
Stigmatizing a child
disrespect, denigration
Withholding love, support, or guidance
Patterns of belittling, denigrating, blaming,
Treating a child who is a victim as a suspect scaring, discriminating or ridiculing
(repeated questioning and investigation)
Spreading rumours
Failing to provide a supportive environment
Blackmailing a child
Failing to give a child an appropriate sense of Institutionalising a child without exploring
`Child Abuse and its Protection measures & a Biblical Response

self (for example, criticizing weight)

other options
Main caregiver(s) does not respond to a childs Cyber bullying and sexual Solicitation
emotional needs
Exploiting a child
Signs of Emotional Child abuse:

Behavioral signs. Since emotional child abuse does not leave concrete marks, the effects may be
harder to detect. Is the child excessively shy, fearful or afraid of doing something wrong?
Behavioral extremes may also be a clue. A child may be constantly trying to parent other children
for example, or on the opposite side exhibit antisocial behavior such as uncontrolled aggression.
Look for inappropriate age behaviors as well, such as an older child exhibiting behaviors more
commonly found in younger children.
Caregiver signs. Does a caregiver seem unusually harsh and critical of a child, belittling and
shaming him or her in front of others? Has the caregiver shown anger or issues with control in
other areas? A caregiver may also seem strangely unconcerned with a childs welfare or
performance. Keep in mind that there might not be immediate caregiver signs. Tragically, many
emotionally abusive caregivers can present a kind outside face to the world, making the abuse of
the child all the more confusing and scary.

3. Sexual
Sexual Abuse is an involvement of a child in a sexual activity that s/he does not fully comprehend, is
unable to give informed consent to, or is not developmentally prepared for, such as:
Contact
Non-contact
Kissing or holding in a sexual manner
Obscene calls or obscene remarks on a
Touching and fondling genital areas
computer or a phone or in written notes
Forcing a child to touch another persons Virtual sex
genital areas
Online sexual solicitation and grooming
Forcing a child to perform oral sex
Voyeurism
Vaginal or anal intercourse and other sexual Exhibitionism
activity
Exposed to pornography or used to make
Biting a childs genital area
pornography
Incest, rape, sodomy, indecent exposure
Sexually intrusive questions or comments
Sex with animals
Forced to self-masturbate or watch others
Sexual exploitation, where sexual abuse of a masturbate
child involves some kind of commercial Sexual exploitation and child sex tourism also
transaction (monetary or in-kind)
may be abusive without physical contact (for
Child sex tourism, where abusers travel to a example, a tour operator or taxi driver who
place other than their home and there have sex arranges tours and/ or children for sex tourists is
with a child
an exploiter of children as well).
Child Sexual Abuse And India Law Essay
The cases of the horrid Nithatri Killings of 2006, the delayed but ongoing trial of S.P.S Rathore who
abused a 14 year old girl in 1990, the recent rape of a Russian minor girl on the beaches of Goa in
January 2010, all tell the chilling tale of the prevalence of Child Sexual Abuse in India. Add to this
the horrifying yet revealing staistics of the the study by the Government of India backed by the UN
Children's Fund and the study by the Ministry of Women and Child Development, we get the clear
picture of a State's complete lack of concern in the form of legislative apathy towards its sexually

`Child Abuse and its Protection measures & a Biblical Response

vulnerable and abused children, whom it has claimed in the 1974 National Policy for Children, as its
supreme national assets.
The study by the Indian Government along with two civil society organisations - Prayas and Save the
Children backed by the UN Children's Fund revealed in April 2007 that more than half the children
in India have faced some form of sexual abuse. Another study the first ever on a national level and
touted to be very accurate was conducted by the Ministry of Women and Child Development,
covered 13 of India's 29 States with a sample size of 12, 447 children in the 5-12 age group and 2334
young adults. The survey divided abuse into three categories, physical, sexual and
emotional. [1] Some shocking data related to child sexual abuse include [2] :
Around 53% of the children were victims of sexual abuse and most children do not report the matter
to anyone
Around half of the cases of sexual abuse were committed by people known to child or people who are
in a position of trust or responsibility
Around 41.17% of children in the 5-12 age-group complained of being forcibly kissed, the figure
came down to 25.73% in the 13-14 age-group
around 25.86% of teenagers reported being forced to exhibit their private parts; the relevant figure for
those below 12 was 35.86%
Around 70% of abused children have never reported the matter to anyone
The impact of sexual abuse on the child is long-term and disastrous not only to the child but to the
family around the child and finally the society. The mental and physical health of the child is at stake.
It could lead to sexually transmitted diseases like HIV or pregnancy at an early age. Since the child is
blamed very often for being sexually abused, it could lead to isolation and depression.
This project intends to discuss the issue of Child Sexual Abuse in India and the way the Indian
Legislature and Judiciary have dealt with it so far. It intends to look at CSA from a human rights
perspective and stress that India has a duty to fulfil its international obligations under the Child
Rights Convention by ensuring that perpetrators of this heinous crime do not go scott free. Children
are a country's most valuable assets and legal silence on such an issue has the potential to ruin the
country's future.
The researcher intends to first establish that CSA is a violation of the human right of the child. In the
next section, the researcher intends to discuss how India's response to tackling the issue has been like.
The researcher will discuss the case of Sakshi v Union of India, which is an important case regarding
CSA in India and the recommendations of the 172nd Law Commission of India Report. Next, the
Offences Against Children's Bill, 2005 will also be discussed briefly.
Child Sexual Abuse Violation of the Human Right of the Child
Child Sexual Abuse (CSA) is a broad term which includes child prostitution, child trafficking, child
pornography and other forms of abuse. Eventhough there is no uniformly accepted definition of CSA,
it is agreed that, when any child has been physically or mentally violated with sexual intent, usually
by a person who is in a position of trust vis-a-vis the child , it amounts to Child Sexual Abuse
(CSA). [3]
The Standing Committee on Sexually Abused Children (SCOSAC) [4] defines CSA as :
when a sexually mature person has by design or neglect of their usual societal or specific
responsibilities in relation to the child engaged or permitted engagement of that child in activity of
sexual nature, which is intended to lead to the sexual gratification of the sexually mature person.
This definition applies regardless of whether there is involvement of of genital or physical contact,
regardless of whether initiated by the child or whether there is a harmful consequence in the short
run. [5] The National Seminar on Child Abuse in India in 1988, redefined the term in the Indian
context as the intentional, non-accidental injury, mal-treatment of children by parents, caretakers,
employers or others including those individuals representing government / non-government bodies
`Child Abuse and its Protection measures & a Biblical Response

which may lead to temporary or permanent impairment of their physical, mental, psycho-social
development, disability or death. [6] The United Nations defines CSA as contacts or interactions
between a child and an older or more knowledgable child or adult (a stranger , sibling, or person in a
position of authority, such as parent or caretaker), when the child is being used as an object of
gratification for the older child's or adult's sexual needs. These contacts and interactions are carried
out against the child using force, trickery, bribes, threats or pressure. [7]
CSA becomes exploitation when a child is used for sexual purposes in exchange for cash or favours
in kind between the client/customer and the intermediary agent who profits from such as trade in
children. This includes child prostitution through trafficking , child sex tourism and child
pornography. [8]
On 11th December 1992, India ratified the United Nations Convention on Rights of Child (CRC),
1989, a legally binding international human rights instrument, which keeps the best interests of the
child in mind, and seeks to protect the rights of the children in all countries that are a signatory to the
convention. According to the CRC, the duty rests primarily on the State to create a legislation and
policy framework and provide resources to implement the objectives of the convention. [9] The CRC
also stresses the role of parents, families and communities as caregivers. It is also the first convention
to give NGOs a role in monitoring its implementation, under article 45a. [10]
The relevant provisions of the CRC that can be applied to CSA include :
Article 19 - State's obligation to protect children from all forms of physical or mental injury or abuse,
neglect or negligent treatment, maltreatment or exploitation including sexual abuse perpetrated by
parents or others responsible for their care. Articles 34 and 35 lay down the obligations of the State to
protect the child from all forms of sexual exploitation and sexual abuse. For this purpose the State
Parties shall take appropriate measures to prevent :
the inducement or coercion of a child to engage in any unlawful sexual activity
the exploitative use of children in prostitution or other unlawful sexual practices
Article 39 requires that the State take all appropriate measures to promote the physical and
psychological recovery and social reintegration of a child victim from any form of neglect, torture,
abuse or any other form of cruel, inhuman or degrading treatment or punishment or armed conflict.
The ICCPR lays down that every child, without any discrimination, has the right to such measures of
protection as are required by his status as a minor on part of his family, society and the state. [11]
The Constitution of India requires the country to protect children of tender age from abuse and see to
it that they are not forced by economic necessity to enter into vocations unsuited for their age and
strength. [12] The State is also required to ensure that children are given oppurtunitites and facilities
to develop in a healthy manner and in conditions of freedom and dignity. [13]
India being a signatory to the CRC and the ICCPR, has a binding legal obligation to take appropriate
measures to eliminate this gruesome phenomenon from the society. But going by the statistic which
says that India has the highest number of child sexual abuse cases in the world [14] , we seemed to
have failed to protect our most precious resource, our children, the future of this country.
This is also evident from the facts that neither do we have any concrete legislation punishing the
crime of CSA and its various forms, nor do our exisitng laws address the issue, the consequence of
which is that the perpetrator gets a minimal/inadequate puniushment or goes scott free. This is not
only a violation of our international law obligations under the UDHR and CRC, but also a gross
violation of the child's constitutional right to be protected against such abuse (provision).
CSA and India
Since India does not have specific laws on CSA, let us take a look at how cases of CSA have been
dealt with under the system of existing penal legislations. Generally, a complaint of CSA is dealt with
by registering offences under Juvenile Justice Act, 1986 or the present Juvenile Justice (Care and
Protection of Children) Act, 2000, or the Indian Penal Code, or the Prevention of Immoral Traffic
`Child Abuse and its Protection measures & a Biblical Response

Act, 1956. Apart from the Juvenile Justice Act, the other above-mentioned legislations do not
specifically deal with children and hence have different definitions of a child.
While the IPC defines a child as being below 12 years of age, the ITPA defines a minor as a person
having completed 16 years of age but not 18. Section 376 of the IPC which punishes rape defines the
age of consent to be below 16 years of age. Sections 82 and 83 state that nothing done by a child
below 7 years of age is an offence and further under 12 years of age, till he has attained sufficient
maturity to understand the nature of his act and the consequences of his conduct. [15]
Some of the major problems related to trial of cases related to CSA in India are that, laws that are
specific to women are extended to children; only penal penetration is considered a grave sexual
offence - if it is oral penetration or penetration with an object, the crime is considered less severe;
there is no law to try perpetrators of repeated sexual offences against one child. [16]
How do we apply section 354 of IPC, dealing with outraging the modesty of a woman, to children
and how do we define modesty with respect to children? Also, there exists a difference between the
definitions of a minor boy and minor girl under the Juvenile Justice Act, where the former is below
16 years of age and the latter is below 18. [17] The consequence of not uniformly determining the age
of a child under the Indian legal system is that it offers the accused to use the loopholes and evade
punishment.
The Juvenile Justice (Care and Protection of Children) Act, 2000
This act does not specifically deal with CSA but it is one of the laws used to prosecute abusers. This
act has replaced the Juvenile Justice Act, 1986, and under the new law, a juvenile includes a child
who has been abused or tortured. Children are sent to Child Welfare Committees where after an
enquiry sent to a juvenile home for care, protection and rehabilitation. [18]
The Indian Penal Code
Most cases of CSA in India are dealt with under the IPC. The criminal legislation does not recognise
CSA as an offence, The sections under which the act is criminalised are offences of rape (section
375), outraging the modesty of a woman (section 354), and unnatural offences (section 377). Section
375 defines rape as sexual intercourse commited by a man on a woman against her will or without
her consent. The explanation to the section states that penetration is sufficient to constitute that
sexual intercourse necessary for the offence of rape. Therefore, only CSA of girl-children where
there has been peno-vaginal penetration will be punished under this section. But the fact is that most
sexual abuse cases do not take this form. They could be disguised as exhibitonism, touching, and all
forms of penetration including penile-anal, penile-oral, object-vaginal and finger-vaginal. [19]
When there has been no penetration in cases of girl-child, section 354 comes in to play. This section
criminalises the act of outraging the modesty of a woman . The term 'modesty' with respect to women
has been very ambiguosly defined by judicial interpretation. When such a section is applied to a
child, whether or not a child possesses modesty is what is the debate will be about instead of speedily
punishing the perpetrator. When a boy- child a sexually abused, section 377 dealing with unnatural
sexual offences is invoked. But this section does not operate when the abuse does not involve
penetration. Therefore, there is no section to penalize molestation of boys. Section 377 is otherwise
inadequate as it is not designed to penalise CSA and therefore does not cover most of the forms of
CSA. [20]
The Prevention of Immoral Traffic Act, 1986
Under section 8, both girls and boys are given protection from sexual abuse. There are also
provisions against brothel kepers and keeping minor girls. Discretionary powers have been given to
magistrates for interim placement of chidren who are housed in institutions.
Attempts by the Judiciary and Legislature
In the year 1999, Sakshi (a woman's organisation working with victims of sexual abuse) filed a
PIL [21] in the Supreme Court after the Delhi High Court declared that the case of an eight year old
`Child Abuse and its Protection measures & a Biblical Response

child, penetrated in three orifices by her father cannot be considered either as rape or an unnatural
offence. [22] Sakshi submitted that the expression 'sexual intercourse' as contained in sectoin 375 of
the IPC should include all forms of forcible penetration. The restrictive interpretation of the
'penetration' to only forcible penile/vaginal penetration only defeats the very purpose of punishment
for rape under section 376. The argument was that, the restrictive interpretation violated (1) Indian
Constitution (2) India's International Commitments under instruments like the CRC and the UN
Convention on the Elimination of all Forms of Discrimination Against Women. [23]
Counsel for the petitoner, Ms Meenakshi Arora, argued that section 375 of IPC should be interpreted
in the current scenario, especially keeping in mind that child abuse has assumed alarming
proportions. Learned counsel submitted that the words 'sexual intercourse' should be interpreted to
mean any kind of penetration of any type of any orifice in the body and not the intercourse
understood in the traditional sense. Also, since sexual intercourse has not been defined in the IPC,
there is no obstacle to the court's effort to widen the meaning to bring in cases of child abuse under its
sweep. She also cited UN CEDAW, and CRC in this connection. [24]
The Supreme Court refused to expand the definition of rape to include other forms of penal/vaginal
penetrations. The court reasoned that it had to follow the principle of stare decisis and that criminal
law should be clear and certain. But the court did agree that the suggestions made by Sakshi will
advance the cause of justice and are in the larger interests of the society. It agreed that cases of CSA
are increasing by the day and hoped that the Parliament would frame specific legislation to tackle the
issue.
The Delhi High Court reiterated the hope in the case of Tara Dutt v. State. Since our criminal law
does not recognise digital rape (forcible penetration by finger), the accused in this case was convicted
for a far lesser offence under section 354 of IPC which deals with outraging the modesty of a woman.
The court lamented that despite the recommendations of the 172nd Law Commision of India report
over nine years ago that the Parliament should replace the present definition of rape under 375 IPC
with a broader definition of sexual assault, which is both age and gender neutral, nothing has been
done about it. [25]
During the trial of thre case Sakshi v. Union of India, the Supreme Court had asked the Law
Commission of India to look review the rape laws and suggest amendments. Some of the suggestions
made by the 172nd Law Comission of India report on rape laws include that are relevant from the
perspective of CSA include :
The existing definition of rape under section 375 has been substituted by the definition of 'sexual
assault'. Sexual Assault hes been defined to include all forms of CSA with the exception of marital
rape.
Section 376 has been redefined to provide for punishment for sexual assault
Minimum punishment for sexual assault has been recommended as 5 years
A new section, 376E has been recommended to be added to the IPC which deals with unlawful sexual
contact. This is intended to cover those situations where the abuser touches the victim with sexual
intent either directly or indirectly with any part of the body or with any object. [26]
The above were some of the many suggestions made by the LCI report. The report has dealt with
other legislations too but the researcher here has discussed very briefly the amendments to the IPC
only.
The Offences Against Children's Bil, 2005, was drafted by the Ministry of Women and Child
Development in consultation with NGOs, legal experts and social workers. Though it initially created
some hope of a law that will specifically address CSA, five years after its draft, there is still
absolutely no news about the possibility of such a legislation. The Bill defines CSA and makes
'consent' the qualifying ground to ascertain abuse when the child is between 16 and 18 years off
`Child Abuse and its Protection measures & a Biblical Response

age, according to section 2(c). [27] The law deems children below the age of 16 as incapable of
giving consent. However, the problem with this is that it could end up punishing consensual acts of
sex between young people. To illustrate, it is felt that if a child of 14 years has consensual sex with a
child of 17 years, the 17 year old would have commited a crime against the other child, who is
incapable of giving consent. [28] And in a situation where both are under 16, there are both guilty of
committing sexual assault as their consent is invalid in law. The importance of protecting children
from sexual abuse by adults cannot be over-emphasised. However, to criminalise children under a
legislation ostensibly meant to protect them solely on the basis of a prudish denial of child sexuality
is simply moral policing, says a lawyer Tarunabh Khaitan. [29] Another crticism of the bill is that
while a person accused of involvement or abetting in child pornography is punished for a minimum
of seven years, a person accused of sexually abusing a child is for a minimum of just six
months! [30]
Conclusion
Despite the above-mentioned well intentioned efforts by the legislature and the judiciary, it is apalling
that India still does not have any legal mechanism to help the vicitms of CSA. The need for it cannot
be over-stated. The researcher agrees with the suggestion that there also needs to be an efficient
administrative mechanism to record and register cases of child abuse. Also, the laws must look into
complaint mechanisms for CSA cases, as most of the children do not report CSA to anyone. Victims
of CSA face indescribable mental trauma and they need someone who they can trust and who will
protect and take action on behalf of them.
A Child Labour In India Children And Young People Essay
Child labour is undoubtedly a human rights issue. It is not only exploitative but also endangers
childrens physical, cognitive, emotional, social, and moral development. It perpetuates poverty
because a child labour, deprived of education or healthy physical development, is likely to become an
adult with low earning prospects.[1]This is a vicious cycle which apart from ruining the lives of many
results in an overall backwardness in the masses.
Moreover, conceptualising child labour as a human rights issue gives the victim with the authority to
hold violators liable. Human rights generate legal grounds for political activity and expression,
because they entail greater moral force than ordinary legal obligations. Children are right holders
with the potential to make valuable contributions to their own present and future well being as well as
to the social and economic development of the society and thus they should under no circumstances
be perceived as passive and vulnerable.
Today, traditionally prescribed interventions against child labour which were welfare based like
providing a minimum age for work are being replaced by rights-based approach. A rights-based
approach to child labour needs to be adopted which puts internationally recognized rights of children
to the center while utilizing UDHR, ICCPR and ICESCR as a supportive framework. Child labour is
a condition from which the children have a right to be free and it is not merely an option for which
regulating standards must be devised.
In this paper we shall firstly trace the slow orientation of child labour laws to include human rights
perspective internationally, and then evaluate current Indian laws and policies from a human rights
perspective
II. A Human rights approach to child labour
Initially, scholars were unsure over extending human rights to children.[2] For instance, the 1948
Universal declaration of Human Rights (UDHR) emphasises that everyone is entitled to all rights
and freedoms set forth in the declaration... but makes no age qualification to the same. So it is
unclear whether it extends to children. However, Art.4 of UDHR has been interpreted as prohibiting
exploitation of child labour by interpreting servitude to include child labour.[3]
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In addition, Articles 23 and 26 of the United Nations Universal Declaration of Human Rights seek to
guarantee just and favorable conditions of work and the right to education, both of which are
violated constantly and globally through the exercise of the worst forms of child labor.
In 1966 the International Covenant on economic, social and cultural rights (ICESCR) and
International Covenant on civil and political rights (ICCPR) took significant preliminary steps
towards modifying human rights according to age, by defining childhood as a state requiring special
protection, with rights distinct to those of adults.[4] Even so it was not until 1989 that the Convention
on Rights of Children (CRC) clearly spelt out the rights of the child while giving them a special
status apart from the adults.
Thus, it should not be surprising that early international legal efforts to address child labour tended to
be abolitionist in tone and treated as an aspect of labour market regulation.[5] Next, a prioritization
approach was adopted where concentration was on the more abusive forms of child labour. So the
ILO adopted Convention 182 on the Worst Forms of Child Labor, 1999, aimed at the immediate
elimination of intolerable forms of child labor. The convention requires signatories to work with
business groups to identify hazardous[6] forms of child labor and introduce time-bound programs for
eliminating them.
Conventions 138 and 182 are recognised as core International Labour Organization (ILO)
conventions but unfortunately human rights groups have done much to criticise it. They argue that
this artificial division of hazardous and non-hazardous forms of child labour is artificial and made
only for the benefit of labour regulations. Child labour in any form is very harmful and exploitative
for the children.[7]
Secondly, child labour, as defined by ILO is work done by children under the age of 12; work by
children under the age of 15 that prevents school attendance; and work by children under the age of
18 that is hazardous to their physical or mental health. It is an economic activity or work that
interferes with the completion of a child's education or that is harmful to children in any way.[8]Such
an age based classification is incongruous and is behind time.[9] The right to a childhood cannot be
replaced by placing such age barriers which imply at least some work could be done by children at
even age 12! Where is the best interest of child seen in such laws?
Fortunately, a human rights approach to child labour was soon adopted by Convention on Rights of
the Child (CRC) in 1989. Such rules focus not only on the avoidance of harm to children but as well,
on regulation of employment relationship in which working children find themselves and beyond
that, on rights of children to education and to participate in decisions that affect their lives, including
those related to their employment. This holistic view of child labour as only a part of a child's life is
principally what sets human rights approach apart from the labour regulation approach.[10] However,
some critique of CRC feel that categorizing child labour as a special category has trivialized their
rights and have made them weak and in need of an adult advocate. Conversely, the defenders of CRC
argue that it is through this classification that children gain more rights with legally recognized
interests which are specific to their stage in life cycle.
The slavery convention, 1926 and Supplementary convention on abolition of slavery, the slave trade,
institutions and practices similar to slave trade, 1956 entered into force in 1957 prohibits slavery like
practice under Art 1. In recent times Child labour has been read as a slave like practice as it involves
economic exploitation. Since children are more vulnerable than adults and are dependent on their
parents, it can be assumed that when they are economically exploited by their parents or by their
consent, the decree of dependency necessary for work to b qualified as slavery like practice will be
attained in most cases.
In the light of ICCPR (art 8(2)) and Supplementary convention on abolition of slavery, the slave
trade, institutions and practices similar to slave trade, 1956, Art.4 of UDHR should be interpreted as
prohibiting exploitation of child labour as child labour comes under servitude. Child labour also
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comes under the term forced or compulsory labour in Art.8(3) of ICCPR. The obligations of
state parties under art 8 are immediate and absolute. Thus state parties have to prevent private parties
from violating child labour norms. Art 24, ICCPR obliges the state to protect children from economic
exploitation
III. Convention on rights of child
United Nations Convention on the Rights of the Child is the first legally binding international
instrument to incorporate a full range of human rights such as civil, cultural, economic, political and
social rights for children. The Convention offers a vision of the child as an individual and as a
member of a family and community, with rights and responsibilities appropriate to his or her age and
stage of development. By recognizing children's rights in this way, the Convention firmly sets the
focus on the whole child.
The Convention under Art.32 speaks of economic exploitation of children by making them perform
work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the
child's health or physical, mental, spiritual, moral or social development. The Convention spells out a
child's right to education[11], as well as identifying the forms of harm to which children should not
be exposed. Other rights given to children include right to the enjoyment of the highest attainable
standard of health and to abolish traditional practices that are prejudicial to children's health (Article
24), a right to a standard of living adequate for the child's physical, mental, spiritual, moral and
social development; parents have the main responsibility for this, but governments are required
within their means to assist parents, as well as to provide material assistance and support in case of
need(Article 27) and a right to rest and leisure, to engage in play and recreational activities
appropriate to the age of the child. Article 22 specifies that refugee children have the same rights as
all other children.
Article 6 of the convention makes it the obligation of the governments to ensure that children are able
to survive and develop to the maximum extent possible while Article 11 urges governments to
prevent the illicit transfer and non-return of children abroad. Under Article 19, Governments must
take action to protect children against all forms of physical or mental violence, injury, abuse, neglect,
maltreatment or exploitation, including sexual abuse[12] and must provide special protection and
assistance to children who are deprived of their own family environment under article 20. Article 35,
requires governments to take action to prevent children from being trafficked while articles Article 36
and 39 requires governments to protect children against all other forms of exploitation prejudicial to
any aspects of the child's welfare and to help children recover from exploitation, neglect or abuse
(particularly their physical and psychological recovery and return and reintegration into the
communities they come from).
Two other provisions in the Convention are also vitally important for working children. Article 3 says
government agencies and other institutions taking action concerning a child or children must base
their decisions on what is in the children's best interests. Article 12 emphasises that when a child is
capable of forming his or her views, these should be given due attention, in accordance with the
child's age and maturity.
Other conventions of interest include Optional protocol to the convention on rights of child on sale of
children, child prostitution and child pornography and Optional protocol to the convention on rights
of child on the involvement of children in armed conflict both adopted in May, 2000.
IV. India and its International commitments
India has ratified six ILO conventions[13] relating to child labour but have not ratified the core ILO
conventions on minimum age for employment (convention 138) and the worst forms of child labour,
(convention 182) recognised as the core conventions at the international labour conference which
makes it mandatory for the international community to follow certain standards in their crusade
against child labour. Nevertheless, India has taken commendable steps to eliminate child labour.
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The recent right of children to free and compulsory education Act, 2009 and the preceding 86th
amendment exemplifies the same. Furthermore, the passing of Juvenile Justice (care and protection)
Act, 2006 shows India's commitment to a human rights approach to child labour. The Act emphasises
on looking into the best interests of the child and allows for social reintegration of child victims.
In such a scenario India not signing the core labour conventions does not make a difference in the
fight against child labour. India is a party to the UNdeclaration on the Rights of the Child 1959. India
is also a signatory to the World Declaration on the Survival, Protection and Development of Children.
More, importantly India ratified the Convention on the Rights of the Child on 12 November 1992.
[14]
Other important international initiatives against child labour include the adoption of the first Forced
Labor Convention (ILO, No. 29), 1930, Stockholm Declaration and Agenda for Action: States that a
crime against a child in one place is a crime anywhere, 1996, establishment of 12 June as the World
Day Against Child Labor in 2002 by ILO and the first global economic study on the costs and
benefits of elimination of child labour.[15]
V. Indian laws on child labour
The present regime of laws in India relating to child labour are consistent with the International
labour conference resolution of 1979 which calls for combination of prohibitory measures and
measures for humanising child labour wherever it cannot be immediately outrun.[16]
In 1986 Child labour (Prohibition and regulation) Act was passed, which defines a child as a person
who has not completed 14 years of age. The act also states that no child shall be employed or
permitted to work in any of the occupations set forth in Part A or in the process set forth in Part B,
except in the process of family based work or recognised school based activities. Through a
notification dated 27 January 1999, the schedule has been substantially enlarged to add 6 more
occupations and 33 processes to schedule, bringing the total to 13 occupations and 51 processes
respectively. The government has amended the civil service (conduct) rules to prohibit employment
of a child below 14 years by a government employee. Similar changes in state service rules have also
been made.
The framers of the Indian Constitution consciously incorporated relevant provisions in the
constitution to secure compulsory primary education as well as labour protection for children. If the
provisions of child labour in international conventions such as ILO standards and CRC are compared
with Indian standards, it can be said that Indian constitution articulates high standards in some
respects The constitution of India, under articles 23,24, 39 ( c) and (f), 45 and 21A guarantees a child
free education, and prohibits trafficking and employment of children in factories etc. The articles also
protect children against exploitation and abuse. Equality provisions in the constitution authorises
affirmative action policies on behalf of the child.
The National child labour policy (1987) set up national child labour projects in areas with high
concentration of child labour in hazardous industries or occupations, to ensure that children are
rescued from work and sent to bridge schools which facilitate mainstreaming. It is now recognised
that every child out of school is a potential child labour and most programs working against child
labour tries to ensure that every child gets an education and that children do not work in situations
where they are exploited and deprived of a future. Similarly, there are other programmes like
National authority for elimination of child labour, 1994 (NAECL) and National resource centre on
child labour, 1993 (NRCCL). Recently, government of India notified domestic child labour, and child
labour in dhabas, hotels, eateries, spas and places of entertainment as hazardous under the child
labour (prohibition and regulation) Act, 1986, effective from 10-10-2006.
National human rights commission has played an important role in taking up cases of worst forms of
child labour like bonded labour. In 1991 in a silk weaving village of Karnataka called Magdi it held

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an open hearing which greatly sensitised the industry and civil societies. It also gave rise to new
NCLP programmes.[17]
VI. Judicial reflections
Judiciary in India has taken a proactive stand in eradicating child labour. In the case of M.C. Mehta v.
State of Tamil Nadu and Ors[18], this Court considered the causes for failure to implement the
constitutional mandate vis--vis child labour. It was held that the State Government should see that
adult member of family of child labour gets a job. The labour inspector shall have to see that working
hours of child are not more than four to six hours a day and it receives education at least for two
hours each day. The entire cost of education was to be borne by employer.
The same was reiterated in Bandhua Mukti Morcha v.UOI[19] and directions were given to the
Government to convene meeting of concerned ministers of State for purpose of formulating policies
for elimination of employment of children below 14 years and for providing necessary education,
nutrition and medical facilities.
It was observed in both the case that it is through education that the vicious cycle of poverty and child
labour can be broken. Further, well-planned, poverty-focussed alleviation, development and
imposition of trade actions in employment of the children must be undertaken. Total banishment of
employment may drive the children and mass them up into destitution and other mischievous
environment, making them vagrant, hard criminals and prone to social risks etc. Immediate ban of
child labour would be both unrealistic and counter-productive. Ban of employment of children must
begin from most hazardous and intolerable activities like slavery, bonded labour, trafficking,
prostitution, pornography and dangerous forms of labour and the like.[20]
Also, in case of PUCL v. UOI and Ors[21] children below 15 years forced to work as bonded labour
was held to be violative of Article 21 and hence the children were to be compensated. The court
further observed that such a claim in public law for compensation for contravention of human rights
and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an
acknowledged remedy for enforcement and protection of such rights.
However, Human rights experts criticise the scheme of payment of compensation envisage in Child
labour act and further adopted by the Judiciary with gusto.[22] They say that monetary compensation
is like washing away ones conscious which still believes that if a child labour is sent to school he
must be compensated for the amount which he might have got if he had worked instead. This only
confuses the already divided opinion of the society today which still thinks that poor and needy
children are better off working.
VII. Conclusions
India has done well in enacting suitable legislations and policies to combat child labour. Nonetheless,
its implementation at grass root level is very much lacking. The child labour laws today are like a
scarecrow which does not eliminate child labour but only shifts it geographically to other places, to
other occupations like agriculture which may be less paying or it might be still continued
clandestinely.[23] The lack of a specialised enforcement officer leads to lesser attention being given
to child labour legislations. Furthermore, many of the child labour programmes remain poorly
funded.
Child labour is a complex problem which cannot be eliminated without first attacking it at the roots.
Thus, poverty, unemployment, lack of social security schemes, illiteracy and the attitude of society
need to be tackled first before any progress can be made. A starting point can be to treat Child labour
as a human rights problem and discouraging its manifestation in any form. If the society as such sees
child labour as a social malaise, we will be much closer at achieving success.
Lastly, there is a lot of debate over the age from which child labour should be banned. The ILO
conventions do not give a definite age, 14 years seems to be the general understanding but CRC

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defines a child to be below 18 years. Right to education is for children below 14 years and Child
labour is prohibited till age of 14 years. This brings the question as to whether children of age 14-18
years are to be denied basic human rights and are to be left vulnerable.

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