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Military Justice System in India


The Article ‘Military Justice System in India‘ by Snehil Sharma examines the composition and operation of the Indian military system. It also examines the various provisions of military law, as well as their applicability today and the extent to which certain rules are being implemented.

To maintain discipline among the serviceman and to uphold the highest standards of professional excellence, military law is a system designed for the representatives of the armed forces in general and the army in particular. But certain aspects of military law have been a matter of debate for a long time.

Introduction

The defense system of a nation is a powerful body defending itself from external threats. The country gets more powerful, the stronger its defense is. The military is considered the nation’s strongest cornerstone. It consists of the army, navy, and marines, and is in charge of safeguarding and defending the nation.

The Indian military has historically kept its functioning differently from the general populace. In India, certain customs and traditions are openly observed. The Indian Army has its own sets of guidelines that govern the armed forces. The body of law and procedure that governs and controls a soldier’s behaviour is known as military justice. To regulate the country’s soldiers, there are various legislative bodies. The ways different nations handle their armed forces vary based on their national setting. Some nations have distinct and independent legislative bodies that govern their armed forces. On the other hand, several nations have various judicial structures and systems for carrying out justice.

Being one of the oldest legal systems in the world, the Indian legal system has a specific hierarchy and structure that are well-defined. Yet, the Indian military, of course, is a major exception to this. For resolving disputes, they have a different system. This distinct system is a long-standing remnant of the British Raj that is still in place and has mostly withstood the test of time.

Why Indian Military Justice System is segregated?

The establishment of a different system of adjudication for military personnel and offences involving the armed forces can be attributed to a number of factors. First, there is a need for a prompt and strong response or punishment given the nature of the armed forces and the essential role they serve. In other words, the civilian court system’s numerous adjournments and delays cannot be allowed to bog down the military. To maintain order and consistency and to inculcate the necessary discipline that is synonymous with the military, quick trials and predictable decisions are essential. In turn, this permits the military to concentrate on its main objective, namely maintaining national security.

Historical Background

After the Mutiny of 1857, the Britishers created the system of military justice to “discipline” the people of India. It served as the foundation for the Indian Army Law of 1950, the Navy Law of 1957, and the Air Force Law of 1950. Only a small number of amendments were made to the British statutes before they were adopted by independent India.

Since then, The Army Act, Air Force Act, and Navy Act have been the driving force of military justice in India. These statutes specify that both men and women in uniform are covered by the legislative provisions. On the official website, use the search function to find all three of these Acts. There are some paramilitary forces in India as well that are governed by rules comparable to those that govern defense services. This covers the Assam Rifles Act, the Coast Guard Act, the Indo-Tibetan Border Police Force Act, and the Border Security Force Act.

Constitutional Provisions and Military law

The Indian Constitution primarily lists the regulations regulating the Indian military. According to Article 33, the parliament may legally restrict or abolish any of the fundamental rights of military personnel in order to uphold discipline and ensure the correct performance of their duty. The jurisdiction of the higher courts over court-martial orders, conclusions, and penalties is curtailed and limited by Articles 136 and 227 of the Indian Constitution.

Apart from the Indian Constitution, the Army Act of 1950, the Army Rules of 1954, the Navy Act, and the Air Force Act are the special legislations that were introduced with the intent to deal with the matters relating to their domains.

The Armed Forces Tribunal Act, which was passed in 2007, was hailed as a significant piece of legislation that permitted the establishment of the Armed Forces Tribunal (AFT). The Army Act of 1950, the Navy Act of 1957, and the Air Force Act of 1950 all grant authority to the tribunal to adjudicate and hear disputes and complaints relating to issues faced by members of the services, including commission, appointments, enrolments, and conditions of service regarding all individuals subject to those Acts. Additionally, it allowed appeals from decisions made by courts-martial held in accordance with the aforementioned Acts as well as from similar issues connected to them.

Judicial Pronouncements

There have been various instances when the Hon’ble have expressed their views regarding the military laws in India:

In the case of Ram Sarup v. Union of India and another, 1965 AIR 247, the plaintiff filed a petition with the Supreme Court asking for a writ of habeas corpus and certiorari about the repeal of the petitioner’s constitutional right at the time of his Army Act trial. The Honorable SC determined that every clause of the Army Act is a piece of legislation enacted by Parliament. Therefore, even though a clause appears to violate the Fundamental Rights set down in Part III of the Constitution, it is nonetheless lawful. The court observed that the Parliament has made the necessary changes to affect the respective FRs in order to carry out its authority under Article 33 of the Indian Constitution. However, the Hon’ble Supreme Court did state that Article 14 of the Constitution was not violated and that Section 125 of the Act’s provisions were not discriminatory. The Hon’ble Court also pointed out that it is undisputed that those to whom Section 125 and its provisions apply to constitute a distinct class.

In another case of Ous Kutilingal Achudan Nair and Others v. Union of India and Others, 1976 AIR 1179, the Honourable SC highlighted that Article 33 of the Indian Constitution, along with the right to form organizations or unions granted by Article 19(1)(c) of the Constitution, determines an exemption to the provisions of Part III of the proceedings.

In Secretary Ministry of Defence v. Babita Puniya, Civil Appeal Nos 9367-9369 of 2011, although considering the abrogation of women’s fundamental rights under Section 12 of the Army Act 1950, the Hon’ble Supreme Court noted that women were not given permanent commissions from Short Service Commissioned Officers under the said provision. In not granting permanent commission to the women the court said that Article 33 of the Constitution authorizes Parliament, by statute, to decide the degree to which the rights granted by Part III of the Constitution are restricted/abrogated in their implementation, inter alia, by the representative of the Armed Forces, in order to ensure that their duties are properly discharged and that discipline is preserved among them

Defects in the Indian Military System

The Indian army has frequently faced criticism for upholding the customs of the British Raj and for not making enough of an effort to adapt to modern society and take the required steps to modernize its justice system. In light of it, the following are some shortcomings of the Indian military justice system:

Relating to Bail: No bail is offered to military personnel who are arrested. Depending on their discretion, the commanding officer or higher military authority may opt to give it. The principles on which bail should be granted have been defined by the supreme court, however it is arbitrary and unfair to issue bail at someone’s discretion, rendering Article 21 of the Constitution meaningless.

Relating to Legal Aid: According to military regulations, an accused person is not permitted to hire a civil attorney to represent him or have a military officer known as the defending officer to defend him. A major violation of Article 21 occurs when there is no access to legal aid.

Relating to Double Jeopardy: The constitutional bar against double jeopardy is enshrined in Article 20(2). It is possible to avoid a second trial for the same offence under the military justice system, but it is not possible to do so in a civil court.

Relating to Members of Court Martial: Members, whether they are legally qualified or not, are not trained to administer justice. They do not exercise their judgement properly and independently throughout a trial since they are subject to diverse commanding influences.

Reforms in the Military Justice System

In the area of human rights, judicial activism has typically kept both the fairness of the courts-martial and the conditions of service of aggrieved military people apparent. The protections provided to the accused and the mindset of those in charge of running the military justice delivery system both have significant flaws. The justice system is regarded as a component of the executive branch and is actually only a tool used by the executive branch to impose coercive discipline. Saying that there is no need for legal reform since few individuals are impacted by military law or because military personnel has deliberately accepted the current system with all of its problems is wrong.

The judicial system for the armed services should implement a process that not only is transparent and objective but also pursues a liberal interpretation of the principles of natural justice. While upholding organizational discipline must always be the fundamental goal of the military justice system, organizational performance must take precedence over punishing or shielding individual behavior.

Regarding the rights of the accused and general human rights principles, there is a definite trend toward change in the global military justice system. The establishment of standing courts, the right to legal representation, the expansion of the accused’s ability to choose a trial over summary proceedings, etc. are some of the key aspects of this transformation that shall be introduced in the future.

Conclusion

The Indian military justice system is a holdover from a time when the Armed Forces needed to be independent since the battlefield was far away. No legal system can or ought to function in a vacuum, ignoring the shifting social standards. Just establishing an appeal tribunal won’t revitalize the outmoded military justice system. It necessitates the inclusion of essential protections based on global legal standards in light of other democracies’ global experiences. Therefore, to develop a sound justice delivery system, it could be more prudent to analyze the military justice system as a whole rather than make adjustments by setting up a “tribunal.”

The system should be uniform across the three Services and serve as a roadmap for citizens engaged in nation-building. If the government is successful in transforming military law into something more contemporary and humanitarian, it will reassure military members that they are subject to the Indian Constitution’s fair, equitable, and impartial justice delivery system.

References

[1] Devaansh Singh, Overview of Indian Military Justice System, Available Here

[2] Anshita Surana, A Glimpse At The Army Act, 1950 And Military Justice System Of India, Available Here

[3] Wing Commander U C Jha (Retd), Military Justice System in India, Available Here

[4] Diva Rai, Military Justice System in India, Available Here

[5] Pratap Alexander Muthalaly, How military courts function in India, Available Here

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Branching of Emergency Relief: A Big Leap Forward


The article ‘Branching of Emergency Relief: A Big Leap Forward’ would cover aspects regarding the sustainability of emergency arbitration along with provisions of the Indian Arbitration and Conciliation Act 1966. Emergency arbitration acts like a quick fix in an alternative dispute resolution process, being just a decade old it has not yet gained any statutory recognition as far as India is concerned.

The aim of this research is to unfold the recent developments in the process of emergency arbitration for the arbitration law enthusiast to make them aware of the legal clasps that are involved in the enforcement of such interim awards. The Indian Arbitration and Conciliation act is silent on the issue of enforceability of an emergency award, the Supreme Court has addressed this issue exquisitely in the case of Amazon v. Future Retails.

Introduction

Prevalent since the medieval period and highly acknowledged in recent times arbitration is the process conducted without knocking doors of the court, amicably between the parties of them working together and resorting to the differences in front of a third party, an arbitrator. The legal matter when extends beyond a single jurisdiction, internationally within internal contracts then comes into the picture of international commercial arbitration. Being an efficient and confidential method where the parties get autonomy and choice, this method sets a higher advantage over litigation in spite of this edge over litigation, arbitration stands on the backfoot in terms of offering remedies in cases requiring emergency relief.

Lies a question in dispute as to the concerns related to the enforceability of the relief granted under emergency provisions and jurisdictional risks between the national courts and the emergency arbitrators appointed in granting interim relief prior to the tribunal’s formation. As not being a perfect substitute for litigation, arbitration required remedies in the situation of emergency even prior to the formation of a tribunal and expedited procedures for providing assistance to the parties involved in cases of prioritized need for interim relief.

These developments observed in various institutions in recent times have made ICA prosper with the provisions introduced for emergency appointment of arbitrators and quickly formed tribunals. The revised UNCITRAL Model Law on International Commercial Arbitration’1985 included interim remedy measures in the year 2006 and today most of the international arbitration rules have incorporated the provisions for emergency relief. This concept of emergency arbitration introduced in the rules of SIAC in the year 2010, permitted the party to pursue an emergency arbitrator in order to deal with the request for urgent interim relief before constituting an arbitral tribunal.

These provisions of emergency arbitration are contained in schedule 1 of SIAC rules. The concept is relatively simple in nature if a party urgently needs interim relief and that need is of such emergent nature that it cannot wait for an arbitral tribunal to be constituted then the party may turn to the arbitration institution and such institution as a matter of hours or in shortest time period appoint an emergency arbitrator to grant interim relief to the party.

With the need of providing urgent measures, emergency arbitration is necessitated when a delay may cause losses irrecoverable by way of damages. The main agreement between Tier 1 and Tier 2 suppliers is set by the ICC arbitration clause where the two MNCs are tied in a contract agreement of delivery along with a few other affiliate companies and these suppliers are seated over the areas of Asia and Europe respectively.

During the continuance, a supplier raises dissatisfaction with the prices agreed upon and asks for a readjustment of the prices. In response to the above supplier the latter objects, later on, leading to threats and breach by the 1st supplier of stopping the delivery if the re-adjusted prices were not agreed to within a specified time period. Situations like these would cause enormous damage to the 1st supplier leading to hampered production sites thus asking for effective immediate relief. Here, the supplier’s belief in the Emergency Arbitrator of having a confidential way out to avoiding high litigation costs is the ineludible source the party agrees to pursue.

Defined in section 2(1)(f) of the arbitration act international commercial arbitration, the term commercial was first given the widest possible interpretation by the Apex Court in the case of R.M. Investment & Trading Co. (P) Ltd. v. Boeing Co. also the clause talks of the legal relationship under the Indian law that too between an individual who is a national of or normally resides in a country other than India. Section 9 of the Act acts as an indirect mechanism for emergency awards where parties cannot enforce an interim emergency award through section but they can definitely approach local courts through an application filed under section 9 of the Act.

A foreign seated award and its enforcement in our country are not so likely as the powers vested in by the Indian Courts are prospectively barred from granting interim remedy in foreign-seated arbitrations as laid down in the case of Balco v. Kaiser Aluminum Technical Services. The high court of the capital city, Delhi in the case of Raffles Design issued an interim order similar to that granted by an emergency arbitrator of SIAC but held that the award cannot be enforced in India under the Act.

The parties have to bridge the gap between enforcement of remedy awarded by the emergency arbitrator in an arbitration proceeding conducted outside India in the absence of definitive Apex Court precedent. The parties appear to be left with the option of enforcing the interim relief granted in a foreign seated arbitration in India by filing an application under Section 9 of the Act.

An emergency arbitrator usually has the following things to do while granting interim relief to the party which includes determining whether or not the arbitrator has jurisdiction over the matter in hand. Secondly, the arbitrator will then ascertain the admissibility of the application made by the party. The claimant for availing the interim measure has to satisfy the trinity principle i.e., the balance of convenience, irretrievable damage, and prima facie matter. Moving towards the heart of the process, the arbitrator will then check whether the application is justified.

In simple words, he/she will decide whether or not to grant that interim relief. In the general approach, the substantive standards will apply to the arbitral interim relief. However, it is notable that there is no prescribed test expressly regulated to determine the just or unjust nature of the application.

Recent Developments

In a recently decided case of Ashwani Minda and Ors. v. U-Shin Ltd. and Ors. The Delhi high court put forward that section 9 of the Indian Arbitration act will be applicable to international commercial arbitration unless the contrary is not given in the agreement. Here, in this case, the agreement between Ashwani Minda and U-Shin Ltd. was silent upon approaching the local courts and taking up another mechanism for the resolution of the dispute.

The agreement expressly mentioned that the arbitration would be an institutional arbitration and the goings-on would be governed by the rules established by JCAA. The court also analyzed the intent of the party in order to determine the sustainability of section 9. It was held that the intent to approach the court was absent as there was no mention of section 9 in the arbitration clause of the agreement hence, it was implied that the applicability of section 9 is excluded in this case, said the court.

The high court further laid down its view on the enforcement of the emergency awards in India by referring to the case of Raffles Design, it was perspicuous that once the parties seek an emergency arbitrator for interim relief the parties then have no authority to approach the domestic court for seeking the same relief, as it amounts to the doctrine of election of remedies. But in the case of Raffles’s design, the court decided to review the application on the basis of its creditability and then settle whether or not to accept or deny the application for interim relief.

Even after the case of Ashwani Minda, there was no conclusive judicial pronouncement in regards to the enforcement of an emergency award in India, until Apex Court in the case of Amazon v. Future Retail ruled that the award passed by the emergency arbitrator of a foreign country is enforceable in Indian law. It is wholly incorrect to say that Section 17(1) of the Act would exclude an Emergency Arbitrator’s orders”, the Court said. Indian Arbitration and conciliation Act 1996, has no explicit provisions as to the enforcement of an interim order passed in a foreign seated arbitration. This ruling is a big leap forward for the Indian arbitration act as the Apex Court has bestowed statutory recognition on the concept of emergency arbitration.

The Apex Court has reinforced the underpinning principle of party autonomy which is indeed fundamental for parties adopting arbitration as an Alternate Dispute Resolution mechanism. Looking at the rise in international Commercial arbitration at play, recognition of emergency arbitration is dream come true for businesses that always look for the speedy resolution of disputes. This decision by the Apex Court has started the ball rolling toward flourishing the Indian arbitration regime in the upcoming years.

The ICC 2019 released the Report of the “ICC Commission on Arbitration and ADR task force on Emergency Arbitrator Proceedings“, the report found that the rules of the ICC have given emergency arbitrators a significant amount of degree and flexibility. Given the nature of interim measures and emergent circumstantial situations which require urgent relief, the relief has not often been granted to the parties. It was observed through the report that despite the above mention scenario parties worldwide continue to seek emergency arbitration. Further, it was found that the in majority of cases the parties obeyed the award provided by the emergency arbitrator.

Conclusion

In the light of injunctions in the Arbitration process, it is seen as a speedy and efficient way of answering pivotal issues which concludes the rise of the process. Emergency Arbitration has emerged to be a turning point in the bigger global picture but our nation still awaits a formal statutory acknowledgment of the Emergency Arbitrator’s rulings. Being an emerging field of law there lies a great deal of uncertainties relating to the granting of interim awards by the judicial system in various countries and ambiguity lying in the implementation of the awards out of emergency arbitration. A resort to it is seen with the institutions putting the forefront in making parties understand the benefits and consequences of seeking emergency relief outside the courts rather than the judicial system.

For emergency arbitration to be more appealing than expedited relief through the legal system a number of emergency relief procedures must be in place and a clearer view of choosing emergency arbitration over the courts and understanding of ramifications is necessary for the parties. Parties entering into emergency arbitration see this mode to be more appealing with the continuing development here and a choice over litigation.

References

1. Emergency Arbitration and India – A Long Overdue Friendship, Available Here

2. Legal Status of the Emergency Arbitrator Under the SIAC 2010 Rules, Available Here

3. Ibid.

4. R.M. Investment & Trading Co. (P) Ltd. v. Boeing Co,1994 AIR 1136, 1994 SCC (4) 541

5. The Arbitration and Conciliation Act, 1996, Available Here

6. Raffles Design International India Pvt. Ltd. v. Educomp Professional Education Ltd., (2016) SCC onLine Del 5521

7. Emergency Arbitration in India, Available Here

8. Ashwani Minda v. U-shin Ltd., (2020) SCC online SC 1123

9. Amazon.com NV Investment Holdings LLC v. Future Retail Ltd., (2022) 1 SCC 209

10. ICC Arbitration Rules, Available Here

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A Socio-Legal Issue in India


The article ‘Street Children Human Rights: A Socio-Legal Issue in India’ by Sukriti Verma highlights the various acts and provisions that serve the object of protection of child rights.

Introduction

“Children are the world’s most valuable resource and its best hope for the future.”- John F. Kennedy

When a child is born in the privileged section of society, his mother and father leave no stone unturned to provide him with the best quality of life, that is available. A child born in a well-off household is seen as the future of the country, whereas a child born in a poor household is treated inhumanely. The better-off child will get proper education, a diet enriched with nutrients, adequate clothing, and a safe house to live in, whereas, on the other hand, the other child, born in a poor household will suffer for one proper meal in a day, slipper to wear, clothes to protect himself from heat and cold, in the harsh weather. Such children will be deprived of basic education.

Also, it is not an uncommon phenomenon to see such a child working in small stalls, cleaning tables in a restaurant, and selling petty items on the streets or roads at traffic lights, like roses, pens, balloons, toys, picking up rags, etc. They are the chunks of society that are looked down upon, they are found living on the streets with their parents, and they all can be seen begging also, doing circus tricks at traffic lights, just to have a meal. They are the street children of India.

But the question arises how do they become who they are? What is the reason behind such a number of street children in India? There are multiple reasons that lead to such an unfortunate situation, such as poverty of the parents, parents’ unemployment, human trafficking, domestic violence, and no adequate measures taken by the government to provide for their proper accommodation, parents’ neglect, orphan children, abandoned children, unwanted children, migration, etc.

According to World Health Organisation (W.H.O), every child has a reason to be on the streets, while some are forced on the streets by desperation and the realization that they have nowhere else to go, some are out on the streets for excitement, and freedom.

The U.N.I.C.E.F. (United Nations International Children’s Emergency Fund) definition of a Street Child as boys and girls aged under 18 years old, for whom “The Street” (including unoccupied dwellings and wasteland) has become home and/or their source of livelihood and are inadequately protected or supervised.[1]

Important provisions of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 of India

Section 2(ii) of the Act defines children as someone who has not completed 14 years of age or as may be specified in the Right of Children to Free and Compulsory Education Act, 2009.

According to section 3 of the Act, there is a general prohibition on the employment of children in any occupation, there are certain exceptions to it:

1. when the child is working to help his family or family enterprise, if it’s not in a hazardous environment, then he can do so after school hours or during vacations.

2. he works as an artist in the audio-visual entertainment industry, including the advertisement, films, television serials, or any such other entertainment or sports activities except the circus.

In the case of Oriental Insurance Co. Ltd. v. Rathnamma[2], it was held that if the employer employs a child, he shall be liable to suffer the penalty under section 14 of the act, i.e. punishment of 6 to 24 months and a fine of 20 to 50 thousand rupees, along with the compensation paid to the child.

Other Acts for the Benefit of Street Children:

Right to Education Act, 2009

Under section 3 of the Act, every child has the right to compulsory and free education in a neighbourhood school.

In the case of Bachpan Bachao Andolon v. Union of India[3], it was held that by virtue of Section 3, 2009 Act, every child of the age of 6-14 years shall have a right to free and compulsory education in a neighborhood school till completion of elementary education.

Commissions for protection of child rights act, 2005

Within the purview of this child, rights mean the children’s rights adopted in the United Nations Convention on the Rights of the Child on the 20th of November 1989, and ratified by the Government of India on the 11th of December, 1992. Under this Act, the central government constitutes a body called the National Commission for Protection of Child Rights for the protection of child rights as defined under the act.

The functions of the act are as follows:

(a) examine and review the safeguards by law for the protection of child rights and also recommend measures for efficient implementation;

(b) present to the Central Government annually reports upon the working of safeguards;

(c) inquire into any violation/ abuse of any child’s rights and further also recommend initiation of proceedings.

(d) examine all factors that hinder the rights of children affected by terrorism, communal violence, riots, domestic violence, trafficking, maltreatment, natural disaster, torture and exploitation, pornography, HIV/AIDS, and prostitution. Further, recommend appropriate adequate remedial measures;

(e) look into the children in need of special care and protection including children in distress, marginalized and disadvantaged children, children in conflict with the law, juveniles, children without families, and children of prisoners. Also, recommend appropriate remedial measures;

(f) study the treaties, and international instruments and undertake periodical reviews of existing policies, programs, and other activities on child rights. Further, make recommendations for the same;

(g) undertake and promote research in the field of child rights;

(h) spread child rights literacy.

(i) inspect or cause to be inspected any juvenile custodial home.

(j) inquire into complaints and take suo motu notice of matters relating to,—

(i) deprivation and violation of child rights;

(ii) non-implementation of laws providing for the protection and development of children;

(iii) non-compliance with policy decisions, guidelines, or instructions mitigating hardships to ensure the welfare of the children and provide relief to such children,

(k) such other functions as it may consider necessary for the promotion of child rights

Protection of Children from Sexual Offences Act, 2012 also called the POCSO Act

This act protects children from all kinds of sexual abuse and provides strict punishment for the offence committed under this act such as child pornography, sexual abuse, sexual assault, and penetrative sexual assault.

Juvenile Justice (Care and Protection of Children) Act, 2015

This act was enacted with reference to the power given under Articles 39 (e) and (f), 45, and 47 to provide for the protection of children. The United Nations Convention on the Rights of Children, which was ratified by India on 11th December 1992, required the States to undertake appropriate measures in case of a child alleged as or accused of, violating any penal law, including:

(a) treatment of the child in a manner consistent with the promotion of the child’s sense of dignity and worth

(b) reinforcing the child’s respect for the human rights and fundamental freedoms of others

(c) taking into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

The act provides for procedures to be followed for children in conflict with the law, children in need of care and protection, rehabilitation and social re-integration, adoption, and child welfare committee, and also deals with offences against children.

Categories of Child Labour

The Children performing child labour can be categorized into several categories:

Child Labour: Children doing paid/ unpaid work in factories, industries, mines, establishments, shops, etc.

Street Children: these include rag pickers, newspaper vendors, small item vendors (with or without a four-wheeled moving stall), fruits and vegetable sellers,

Migrant Children: children who have migrated from other areas for the reason of distress seasonal migration, or for search of better opportunities in work from villages to the cities.

Children exploited for sexual activities: children are being kidnapped and pushed into sexual activities for money by human traffickers.

Working Children: children employed in family agricultural work or business work, by skipping off their school hours.

Children working in households: young female children are employed as maids or household help in the residential houses for cooking, and cleaning.

Bonded Labour: children who are been pledged by their parents for paltry sums of money or are paying off their inherited debt of their fathers.

Constitutional Provisions for the Protection of Street Children

Street children are no different from Human Beings. They have the same human rights, and the same rights, a child has. There can be no inferiority between a street child and a child living in a well-off family. However, the street child will be needing extra attention and protection from the State. The following constitutional provision can be seen in the direction of the protection of street children.

Article 21: It guarantees the right to life and personal liberty. This includes the right to live with dignity and not mere existence. It means a life free from servitude, slavery, and bonded labour, it not only includes the right to food, water, clothing, and a safe shelter, it also includes the right to such an environment where, a child not only survives but undergoes holistic development, and his physical, and social well-being is taken care of.

In the case of Unni Krishnan v. State of A.P.[4] and Mohini Jain’s[5] case, it was enumerated that the right to education is implicit in Article 21. Every child up to 14 years has a fundamental right to free education. After that, it is subject to limits of economic capacity and development of the State.

It was held in the case of Bhabani Prasad Jena v. Orissa State Commission for Women[6] that the DNA test may not only be prejudicial to the rights of the parties but may have a devastating effect on the child that is because the DNA test being an extremely delicate and sensitive aspect. Therefore, a cautious and judicious approach is prescribed, considering that such infringement on the right to privacy.

Article 21A

In the case of Ashoka Kumar Thakur v. Union of India[7], it was held that total compliance with Article 21-A means that there is a necessity of providing good quality education to all children aged six to fourteen who regularly attend schools,

In the case of Pramati Educational and Cultural Trust v. Union of India[8], the constitutionality of Article 21-A and Article 15(5) and the Right of Children to Free and Compulsory Education Act, 2009 was upheld.

Article 24

It was held in the case of M.C. Mehta v. State of T. N[9], the employment of children in hazardous industries is prohibited and directions of the Supreme Court were issued to that effect.

Article 39(e): It States that the state shall, in particular, direct its policy toward securing the health and strength of children of tender age are not abused and that they are not forced by the economic need to enter occupations unsuited to their age or strength.

Article 39(f): It states that the state shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

Article 45: The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.

It was held in the case of Bandhua Mukti Morcha v. Union of India[10] and Bandhua Mukti Morcha v. Union of India[11], that no State neither the Central Government nor any State Government has the right to take any action which will deprive a person of the enjoyment of the basic essentials to live with dignity.

Universal Declaration of Human Rights

The preamble is based upon the principles of freedom, justice, and peace to protect the inherent dignity and equal and inalienable rights of all members of society.

  • Article 1 states that all humans are born with equal dignity and rights
  • Article 3 states that everyone has the right to life, liberty, and security of person.
  • Article 4 states that no one shall be a victim of slavery, servitude and all forms of slavery is prohibited.
  • Article 5 states that no one shall suffer torture or cruel, inhuman, or degrading treatment or punishment.
  • Article 7 states that all persons are equal before the law.
  • Article 8 states that everyone has the right to an effective remedy for violation of fundamental rights before a competent national tribunal/ court.
  • Article 10 states that everyone has an equal right to a free and fair public hearing by a competent jurisdiction.
  • Article 23 states the right to work in favorable conditions of work and free choice of employment.
  • Article 25(1) states that everyone has a right to a standard of living for the health and well-being of himself and his family.
  • Article 25(2) states that motherhood and childhood are entitled to special care and assistance. Also, all children born out of the wedlock or not are entitled to the same social protection, i.e. discrimination or inferiority shall be done against them.
  • Article 26(1) states that everyone has the right to education which shall be free and compulsory in the elementary stages,
  • Article 26(2) states that the education means full development of human personality and also of respect towards fundamental rights and human rights.
  • Article 29(1) states that everyone has duties to the community in which alone the free and full development of his personality is possible.

United Nations Conventions on the Rights of the Child

Article 1 of the convention enumerates someone below the age of eighteen years as a child. Article 2 that the state should ensure that there should be no discrimination of any kind, on parent’s or legal guardian’s race, colour, sex, language, religion, political or another opinion, national, ethnic or social origin, property, disability, birth or other status. Article 4 states that the state shall protect the children rights recognized in the convention and shall take all possible measures with regard to economic, social rights to the maximum extent of their available resources and cultural rights and to the extent of international cooperation.

Under Article 6, the state has to ensure the development of the child and also says that the child has an inherent right to life, and the state shall ensure to protect that to the maximum extent possible. The whole document works towards eliminating the evil against children, and also in children. The document was built on the line of the United Nations Human Rights with all the details about child protection. Also, if any, child by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection, then the states are obliged to provide them the same.

Role of Judiciary

Special Juvenile Court is established in every court so that the cases related to child’s rights are heard effectively and speedily. The court also has the power to refer the child to rehabilitation and social re-integration. The Supreme Court and the High courts also have the right to take Suo moto cognizance in cases where the child’s rights are being exploited or neglected. The role of the judiciary is to ensure whenever a case comes up before it, serves justice and best relief to the child, and also to amend the law to make it suitable for the protection of the child’s rights.

Role of NGO and Media

NGOs that work for the betterment of children carry out certain tasks for the promotion of the protection of child’s rights:

  1. They carry out awareness programs to educate various workplaces about child rights.
  2. They also educate children about their rights, whether they go to school or not, by visiting slums and villages.
  3. Some NGOs also work towards serving meals to the homeless and familyless children
  4. NGOs fight for stronger anti-child labour laws by providing compelling evidence that forms the basis of legislation.
  5. They keep bringing out-of-school children, including child labourers back to the classroom.
  6. And other similar programs which work towards the protection of child rights.

The role of media is to highlight and spread awareness of cases of child’s rights concerns, so it voices the concerns and gets justice done faster.

Conclusion & Suggestion

It is truly said that “every child is a different kind of flower, altogether make this world a beautiful garden.” The street children, neglected by the state, shall no more be looked down upon. They are as human as any other child, and they are not guilty of the position they are living. The state shall ensure every child on the street, shall be sent to the school for basic elementary education. This can be done by assembling a new task force, that will be spotting kids on the street and will work towards sending them to school. The state shall also provide proper accommodation facilities to them, by the means of foster homes or shelters.

Although many NGOs and government organizations are working towards protecting the interest of the child, still it is hard to see the plight of these children. It is somehow also affecting the mental peace of the person because that person is reliving the trauma of the child upon seeing him. If the child is an orphan, the government shall appoint rigorous measures for facilitating their rehabilitation and adoption.

I would like to conclude by saying that street children demand special attention from the government, and hence the government should stop seeing the other way.

References

[1] Street Children-Human Rights, A Socio-Legal Issue In India, Available Here

[2] (2000) 3 LLN 630 (Kant).

[3] (2011) 5 SCC 1

[4] (1993) 1 SCC 645

[5] (1992) 3 SCC 666

[6] (2010) 8 SCC 633.

[7] (2008) 6 SCC 1

[8] (2014) 8 SCC 1

[9] (1996) 6 SCC 756.

[10] (1984) 3 SCC 161

[11] (1991) 4 SCC 177

Important Links

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