Abstract
More than three decades ago, the UN Convention on the Rights of the Child (CRC) endorsed every child’s right to life, play, and develop to its full potential and the obligation of States to protect their children and permit their participation in matters affecting their lives. Nearly seven decades earlier, the Indian Constitution had envisioned special protection for women and children in Article 15(3). While prohibiting the employment of young children below 14 years in hazardous work, Article 21-A guarantees to all children in the age group 6–14 years the right to free and compulsory education. The Indian Supreme Court has, in turn, ensured that children enjoy the guarantees and protections of the law through a dynamic interpretation of the law. Nonetheless, the Convention remains the benchmark for State action regarding children. To achieve these benchmarks, strong law enforcement mechanisms and commitment by all stakeholders are expected. Children need special protection from the law because of their incomplete physical, intellectual, and emotional development. Such laws also require the defenders (lawyers, prosecutors, judges, and law enforcement mechanisms) to have different skills and approaches. Against this backdrop, law school clinics play a unique and decisive role in building sensitive lawyers and judges to protect children’s rights. Special protection and procedures adopted by law call for advanced lawyering skills different from mainstream lawyering. Therefore, this chapter suggests that law schools shall operate a clinical course on child rights to ensure that those skills are successfully transferred to future lawyers. The first part of the chapter reflects how the Indian Constitutional philosophy and India’s legal regime align with international standards for protecting children’s rights. A critique of Central and State laws and schemes relating to the protection of children is also included. The second part of the chapter focuses on various measures taken under law to protect children’s best interests and the skills that the defenders are required to acquire. It is incumbent on the law schools to prepare the lawyers and judges for the roles of justice defenders. The third part highlights the narrative on the Role of Law Schools in producing legal personnel who are sensitized to the needs of the children and acquired the advanced skills required to protect the best interest of the children. This part also deals with the functioning of the Child Rights Clinic of V. M. Salgaocar College of Law in the State of Goa as one of the models. The concluding part of the chapter incorporates the analysis and the way forward.
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Notes
- 1.
India.pdf—UNICEF, https://www.unicef.org/rosa/media/file/India (last visited Oct 13, 2022).
- 2.
O’Neill (1988).
- 3.
Bajpai (2017).
- 4.
Geneva Declaration of the Rights of the Child, Sept 24, 1924, League of Nations, http://www.un-documents.net/gdrc1924.htm.
- 5.
The principles are:
-
1.
The child must be given the means requisite for its normal development, both materially and spiritually.
-
2.
The child that is hungry must be fed; the child that is sick must be nursed; the child that is backward must be helped; the delinquent child must be reclaimed; and the orphan and the waif must be sheltered and succored.
-
3.
The child must be the first to receive relief in times of distress.
-
4.
The child must be put in a position to earn a livelihood and must be protected against every form of exploitation.
-
5.
The child must be brought up in the consciousness that its talents must be devoted to the service of fellow men.
-
1.
- 6.
The CRC was ratified by the Government of India on November 12, 1992.
- 7.
Convention on Rights of the Child (1989). Article 6, Clause 1 and 2. i. It is to be given expression through provision for recognizing the right to registration of birth, right to have name, nationality, right to know one’s parents, and to be cared by them, making alternative arrangement for adoption or foster placement, if necessary, etc.
UN General Assembly, Convention on the Rights of the Child (1989).
- 8.
Id., Article 24: This right requires measures to provide proper pre-natal and post-natal care, minimize instances of child mortality, provide primary health care facilities, ensure nutrition, and to develop preventive healthcare strategies as well as protection of rights of disabled children.
- 9.
Id., Article 29.
- 10.
Id., Article 12, Clause 1.
- 11.
Id., Article 40.
- 12.
Id., Article 19.
- 13.
The Committee meets in Geneva and normally holds three sessions per year consisting of a three-week plenary and one-week pre-sessional working group.
- 14.
Supra note 9, Article 15.
- 15.
All the welfare enactments like the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994, Persons with Disabilities Act 2006, Prohibition of Child Marriage Act 2006, Juvenile Justice (Care and Protection of Children) Act 2015, etc., fall within the purview of the Article.
- 16.
Constitution of India. Article 39(e): The State shall, in particular, direct its policy toward securing … that the health and strength of workers, men, and women and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.
- 17.
Id., Article 39(f): The State shall, in particular, direct its policy toward 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.
- 18.
Id., Article 41: The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. Article 21 A has been passes in pursuance to Article 41.
- 19.
Id., Article 46: The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.
- 20.
Id., Article 47: Duty of the State to raise the level of nutrition and the standard of living and to improve public health. The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.
- 21.
The Constitution (Eighty-Sixth Amendment) Act, 2002, Article 51A(K).
- 22.
Guardians and Wards Act 1890, Hindu Minority and Guardianship Act 1956, Hindu Adoption and Maintenance Act 1956, Child Labour (Prohibition and Regulation) Act 1986 as amended in 2016, Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, The Infant Milk Substitute Act, 2003, The Commissions For Protection of Child Rights Amendment Act, 2006, Prohibition of Child Marriage Act 2006, Right of Children to Free and Compulsory Education Act, 2009, and Adoption Regulations, 2022.
- 23.
Protection of Children from Sexual Offences Act, 2012, § 3.
- 24.
Id., § 5.
- 25.
Id., § 7.
- 26.
Id., § 9.
- 27.
Id., § 11.
- 28.
Id., § 13.
- 29.
Id., § 19.
- 30.
Bhattacharyya (1981).
- 31.
The Juvenile Justice (Care and Protection of Children) Act, 2015 (No. 2 of 2016).
- 32.
Id., § 3.
- 33.
Id., § 13(5), § 13(8).
- 34.
Beti Bachao Beti Padhao, National Creche Scheme, Kishori Shakti Yojana, Rashtriya Bal Kosh, Vatsalya (Foster Care Scheme), etc.
- 35.
Ladli Laxmi Scheme, Scheme for Welfare of Children in Need of Care and Protection (Goa), Mukhyamantri Rajshri Yojana (Rajasthan), Mukhyamantri Kanya Suraksha Yojana (Bihar), Mazi Kanya Bhagyashree Scheme (Maharashtra).
- 36.
National Children’s Policy 2013.
- 37.
http://wcd-icps.nic.in/# (last visited Sept 30, 2022).
- 38.
- 39.
Section 12(c): Every person who has to file or defend a case shall be entitled to legal services under this Act if that person is … (c) a woman or a child …
- 40.
Kirchengast (2006).
- 41.
- 42.
Supra note 33, § 2(9). It means the basis for any decision taken regarding the child, to ensure the fulfilment of his basic rights and needs, identity, social well-being, and physical, emotional, and intellectual development.
- 43.
Id., § 2(15): “Child-friendly” means any behavior, conduct, practice, process, attitude, environment, or treatment that is humane, considerate, and in the best interest of the child.
- 44.
Concluding Observations of Committee on the Rights of the Child, Thirty-Fifth Session Consideration of Reports submitted by States Parties under Article 44 of the Convention on Rights of Child 1989 on India Periodic Report (Feb 26, 2004), https://wcd.nic.in/act/2315.
- 45.
Supra note 35, § 32(2): In all dealings with children, the Children’s Court shall follow the following guidelines: (a) child victims/witnesses are informed of their role in regard to court proceedings; (b) their views are allowed to be heard and respected; (c) inconvenience to them is minimized, and their privacy is respected; (d) delays in the proceedings are reduced; (e) aggressive questioning or cross examination of child victims is avoided and the same, if necessary, is done through the judge; (f) provisions are made for trials in camera; (g) the identity of the child victim is protected; (h) child victims are prepared for the judicial process, and prosecution of alleged abusers is not rushed if a child is not ready to go to court; (i) the investigator ascertains the need for medical examination of the child victim and when examination is undertaken, ensures that multiple re-examination is avoided; (j) the medical examination should be conducted in the presence of the parent/guardian and social worker/counsel or as far as possible; (k) child’s 130 [testimony or statement] should be recorded in the presence of a social worker/counselor as early as possible after the abusive incident with other witnesses at hand; (l) adequate translation/interpretations and translators/interpreters who are sensitive to the children’s needs should be provided wherever needed; and (m) in case of a mentally challenged child, the competent service provider should depose on behalf of the child.
- 46.
Principle of presumption of innocence, Principle of dignity and worth, Principle of participation, Principle of best interest, Principle of family responsibility, Principle of safety, Positive measures, Principle of non-stigmatizing semantics, Principle of non-waiver of rights, Principle of equality and non-discrimination, Principle of right to privacy and confidentiality, Principle of institutionalization as a measure of last resort, Principle of repatriation and restoration, Principle of a fresh start, Principle of diversion, and Principles of natural justice.
- 47.
Central government, the State governments, the Juvenile Justice Board, and other agencies implementing the JJ Act.
- 48.
§ 8(21).
- 49.
Supra note 42.
- 50.
Chelameswar (2010).
- 51.
The 184th Report of the Sixteenth Law Commission of India, on Legal Education and Professional Training and Proposals for amendments to the Advocates Act, 1961 and the University Grants Commission Act, 1956 (2002) pp. 54–61, available at: https://lawcommissionofindia.nic.in/report_sixteenth/, where emphasis on the standards of legal education, legal skills, and values for future lawyers, citing the MacCrate Report, is emphasized.
- 52.
Advocates Act, 1961, §§ (29) and (33). As per Section 29, Advocates are to be the only recognized class of persons entitled to practice law. Section 33 of the same Act, in turn, states that only those enrolled as advocates under the Act are entitled to practice.
- 53.
“Roznama” refers to the proceeding sheet in which the details of what happened in the case on the date of hearing are recorded.
- 54.
Supra note 55, at 55.
- 55.
Though the COVID-19 pandemic did affect the number of visits undertaken on account of the restrictions then in force, nonetheless, the Clinic has resumed its normal activities since the middle of last year.
- 56.
The link for the observance of National Girl Child Day by the Child Rights Clinic of V. M. Salgaocar College of Law, is https://youtu.be/4upzQk_SAFM. See also https://vmslaw.edu.in/child-rights-clinic/.
- 57.
The Goa Children’s Act 2003 (Goa Act No. 18 of 2003), § 32(2).
- 58.
On account of COVID-19 pandemic, the work of the NGO had to be interrupted.
- 59.
On finding that corporal punishment was being used in a school despite its prohibition by law, the members of the Clinic drafted a complaint on behalf of the child victim’s parents to the Education Department, after which the ban was strictly enforced in the school.
- 60.
Atwood (1972).
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Couto, K.R., Vaidya, M.M. (2023). Transformative Role of Law School Clinics in Developing Child Advocacy in India: An Experiment with the Child Rights Clinic at V. M. Salgaocar College of Law, Goa. In: Bajpai, A., Tushaus, D.W., Prasad, M.R.K. (eds) Human Rights and Legal Services for Children and Youth. Springer, Singapore. https://doi.org/10.1007/978-981-99-5551-0_6
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