Author: Samiksha Gupta,
Founder, Editor and Writer | Leagle Samiksha
Introduction to Child Rights:
The Bible of child rights – the Convention on the Rights of the Child, 1989, (CRC) states clearly in its Preamble the following:
“…the child, by reason of his physical and mental immaturity, needs special safeguards and care”.
This statement is as unique as it is confounding. The reason for special need and protection being afforded to the children is the fact that they lack the physical as well as mental capacity to understand the nature and outcomes of their acts. Therefore, lawmakers assume that an elder in a fiduciary position should take decisions on behalf of the child. They hope to ensure that the elder safeguards and takes care of the child.
‘Rights’ on the other hand, refer to a moral or legal entitlement. Further, legal provisions, generally written in the constitution of a country, protect the rights. Additionally, right-holders may duly enforce the rights. The employment of the phrase ‘rights of the child’ thus lies in a grey area. It presents a controversy as explained in the further sections.
No Direct Civil or Political Rights to Minor:
Talking about entitlement, one can observe that the law does not entitle children to make decisions regarding matters concerning their day-to-day lives. It deprives them of their civil rights. We consider them incompetent to contract under Sec 11 of the Indian Contract Act, 1872. A contract with a minor is void ab initio, meaning a minor cannot ratify it after attaining majority. A minor cannot take decisions related to his property under the Transfer of Property Act, 1882. The political right to vote is not available to a minor.
Even before testifying as a witness, a child has to undergo voire dire test under Sec 118 of the Indian Evidence Act, 1872. This test proves his/her level of understanding and credibility.
This deprivation of rights is attributed to the ‘immaturity’ of the minor. In other words, a minor is presumed to be incapable of understanding his actions and judging their impact upon his interests.
Criminal Liabilities of a Minor:
The peculiar part, however, is that in criminal law, the maturity and understanding level of a child becomes a question of fact. As soon as a child attains the age of 7 years, he may be held liable for a criminal offence under Indian Penal Code, 1860 in case the court is satisfied with his maturity. Sec 83 containing the general exception clearly mentions so.
In the case of Krishan Bhagwan v State of Bihar, the court held that a child above the age of seven years may be convicted if he could understand the gravity and outcome of his act.
Further, the legislature brought the 2015 amendment of Juvenile Justice Act in the light of Nirbhaya rape and murder case. Since then, a child above the age of 16 years may be tried and punished as an adult for committing heinous crimes, if the juvenile justice board is convinced of his maturity.
Limited Enforceability of Child Rights:
Lastly, rights include within their meaning, an enforcement mechanism in the event of a violation. The rights guaranteed under CRC are enforceable through the Commission on the Rights of the Child. This Committee only has the power to review national policies, suggest changes and provide infrastructural assistance to the member nations. Therefore, it is a toothless tiger. In essence, the CRC bestowed rights upon children, but not a mechanism in order to effectively enforce those rights.
One could argue that enforcement of child rights also takes place through the national judicial machinery. Children, however, can still approach the courts only through their ‘next best friend’ and not personally. Even in that case, a child may not find a remedy by suing his guardians for violating several rights guaranteed under the CRC. For example, the right to education, the right against mental violence, etc. Hence, the aggrieved child only has a limited capacity to enforce his/her ‘rights’.
The term ‘child rights’ in itself could be considered a misnomer. Using the term ‘rights’ is inappropriate in the context of children. It is rather confusing at best and oxymoronic at worst. At least, the rights guaranteed to a child and their application on the ground level are drastically different from the general understanding of ‘rights’ in the context of an adult person.
Further, the CRC is a flowery document, the application of which results in controversies in the veritable playground. The concept of ‘maturity’ is grey. On one hand, children are deprived of civil and political rights because of lack of maturity. Simultaneously, on the other hand, the state imposes criminal obligations based on the same concept of ‘maturity’ of the same child in question.
It is bewildering to imagine a level of maturity which operates harmoniously to accommodate deprivation of civil and political rights while integrating the imposition of criminal liabilities on a child. Thus, the regime of child rights is dubious and the jurisprudence on it is unclear.