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Rights of Children in India
  • By: admin
  • Date: 13 Nov 2019
  • Civil
  • Comments:
  • Views:22
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The future of the nation depends upon the growth and development of Children in the country. It is the state’s duty to look after the development of children as they are the future of India. The Indian constitution defines certain rights for the citizens of the country, which also includes the rights of children directly or indirectly. In India, child rights must go beyond human rights which exits to ensure fair and proper treatment of the people across the country.

The Convention on the rights of child defines the term ‘child’ as a person below the age of eighteen years unless the majority is defined differently under the applicable law governing children.

In India, the Constitution defines a person below the age of fourteen years as children. Also, the Children Act, 1960,  defines a child as a person who has not attained the age of 16 years in the case of the boy and 18 years in the case of a girl.

 

Constitutional Provisions

The constitution, in its fundamental rights and directive principles, guarantees the rights granted to children in India.  The constitution accords the right to children as citizens of the country and also, due to their special status,  certain special laws are enacted for this purpose.

In 1950, the constitution included the Rights of Children in the provision of fundamental rights and directive principles. Many individuals and activists have approached the apex court for the amendments relating to the rights of children.  There are certain constitutional provisions for children.

 

Right To Education

Article 21 A has listed down the rights of the child to get free education for all children in the age group of 6-14 years in a manner as determined by the state.  The apex court in its liberal interpretation of life and liberty under article 21 held that liberty includes the right of a human being to live with dignity along with the right to education.

Article 45 of the Constitution lays down that the state shall endeavour to provide early childhood care and education for children until they attain the age of six years. Article 45 is the provision for free and compulsory education for all children. Right to free primary education is significant for helping children to develop discipline, life skills and to find a safe and healthy environment to nurture the physiological development of the child.

Article 51 A specifically states that it shall be the fundamental duty of the parent and guardian to provide opportunities for education to his child between the age of six and fourteen.

In the case of P Unnikrishnan vs State of Andhra Pradesh, the apex court included the right of education under the ambit of right to life. The Court observed that education is a preparation for living and therefore concluded that every citizen has a right to education.

 

Right To Be Protected Against Exploitation

Article 23 explains the prohibition of human trafficking and forced labour. The Indian Penal Code and Criminal Procedure Code have separate provisions to prohibit human trafficking in order to track and govern these heinous crimes.

Article 24 lays down the prohibition of employment of children. It states that no child below fourteen years of age shall be employed to work in any factory or be engaged in any hazardous employment that may directly or indirectly affect the healthy growth of the child

The apex court in case of MC Mehta vs State of Tamil Nadu noted that the menace of child labour was widespread in India and that is the reason; the court issued wide directions against prohibiting the employment of children below the age of 14 years and making arrangements of the funds for their education.

The exploitation extends to abuse, negligence and violence against children. The child cannot be made to work in difficult or dangerous conditions.

Article 39(e) states the right of the child to be protected from being abused and forced by economic necessity to enter any occupation unsuited to the age and strength of the child.

It is the right of a child to get equal opportunities and facilities for his personal growth and development. Along with this the children also have  equal rights as the citizens of India, which includes the Right to equality (Article 14), Right against Discrimination (Article 15), Right to personal liberty (Article 21), Right to be protected from being trafficked and forced into the labour ( Article 23), Right to the standard living and improved public health (Article 47).

 

Constitutional Remedies For Infringement Of Rights Of The Child

If the fundamental rights of the children are infringed, the Indian constitution laid down several provisions for constitutional remedies through Article 32 and 226. Article 32 states that a person has the right to move the Supreme Court for protecting his fundamental rights. According to article 226, a person may approach the High Court for the same reasons as mentioned above, however, it is not necessary that the right should be a fundamental right in order to take legal action under these provisions.

Public Interest Litigation may be filed in the apex court or the high court against the government by virtue of article 32 and 226 for the protection of rights of the child.

Some of the other important acts, legislations and policies framed by the government for the protection of child right are

  • Indian Penal Code, 1860
  • Guardian and Wards Act, 1890
  • Child Marriage Restraint Act, 1929
  • Immoral Traffic Prevention Act, 1956
  • The Women’s and Children’s Licensing Act, 1956
  • Probation of Offenders Act, 1958
  • Child Labour (Prohibition and Regulation) Act, 1986
  • Juvenile Justice (Care and Protection of Children) Act, 2000
  • Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2000
  • Protection of Children from Sexual Offences Act, 2012
  • Orphanages and other Charitable Homes (Supervision and Control) Act, 1960
  • National policy for Children, 1974
  • Bonded Labour System (Abolition) Act, 1976
  • Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1987
  • Prohibition of Child Marriage Act, 2006
  • The Child Labour (Prohibition and Regulation0 Amendment Act, 2017

 

Conclusion

The rights of the child need to be protected in order to promote the well-being of the child since they require more protection than other people who have attained majority due to the set of unique needs stemming from their vulnerabilities.  Every single child of the country deserves equality, no matter what colour, race, religion, language, gender define them.

Children with their development process can flourish and in turn, benefit the nation as they are the future of the Country. India, with the help of various international and national mechanisms, is constantly trying to secure the rights of the children.

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Rights of Children in India

By: admin Civil 13 Nov 2019

The future of the nation depends upon the growth and development of Children in the country. It is the state’s duty to look after the development of children as they are the future of India. The Indian constitution defines certain rights for the citizens of the country, which also includes the rights of children directly or indirectly. In India, child rights must go beyond human rights which exits to ensure fair and proper treatment of the people across the country.

The Convention on the rights of child defines the term ‘child’ as a person below the age of eighteen years unless the majority is defined differently under the applicable law governing children.

In India, the Constitution defines a person below the age of fourteen years as children. Also, the Children Act, 1960,  defines a child as a person who has not attained the age of 16 years in the case of the boy and 18 years in the case of a girl.

 

Constitutional Provisions

The constitution, in its fundamental rights and directive principles, guarantees the rights granted to children in India.  The constitution accords the right to children as citizens of the country and also, due to their special status,  certain special laws are enacted for this purpose.

In 1950, the constitution included the Rights of Children in the provision of fundamental rights and directive principles. Many individuals and activists have approached the apex court for the amendments relating to the rights of children.  There are certain constitutional provisions for children.

 

Right To Education

Article 21 A has listed down the rights of the child to get free education for all children in the age group of 6-14 years in a manner as determined by the state.  The apex court in its liberal interpretation of life and liberty under article 21 held that liberty includes the right of a human being to live with dignity along with the right to education.

Article 45 of the Constitution lays down that the state shall endeavour to provide early childhood care and education for children until they attain the age of six years. Article 45 is the provision for free and compulsory education for all children. Right to free primary education is significant for helping children to develop discipline, life skills and to find a safe and healthy environment to nurture the physiological development of the child.

Article 51 A specifically states that it shall be the fundamental duty of the parent and guardian to provide opportunities for education to his child between the age of six and fourteen.

In the case of P Unnikrishnan vs State of Andhra Pradesh, the apex court included the right of education under the ambit of right to life. The Court observed that education is a preparation for living and therefore concluded that every citizen has a right to education.

 

Right To Be Protected Against Exploitation

Article 23 explains the prohibition of human trafficking and forced labour. The Indian Penal Code and Criminal Procedure Code have separate provisions to prohibit human trafficking in order to track and govern these heinous crimes.

Article 24 lays down the prohibition of employment of children. It states that no child below fourteen years of age shall be employed to work in any factory or be engaged in any hazardous employment that may directly or indirectly affect the healthy growth of the child

The apex court in case of MC Mehta vs State of Tamil Nadu noted that the menace of child labour was widespread in India and that is the reason; the court issued wide directions against prohibiting the employment of children below the age of 14 years and making arrangements of the funds for their education.

The exploitation extends to abuse, negligence and violence against children. The child cannot be made to work in difficult or dangerous conditions.

Article 39(e) states the right of the child to be protected from being abused and forced by economic necessity to enter any occupation unsuited to the age and strength of the child.

It is the right of a child to get equal opportunities and facilities for his personal growth and development. Along with this the children also have  equal rights as the citizens of India, which includes the Right to equality (Article 14), Right against Discrimination (Article 15), Right to personal liberty (Article 21), Right to be protected from being trafficked and forced into the labour ( Article 23), Right to the standard living and improved public health (Article 47).

 

Constitutional Remedies For Infringement Of Rights Of The Child

If the fundamental rights of the children are infringed, the Indian constitution laid down several provisions for constitutional remedies through Article 32 and 226. Article 32 states that a person has the right to move the Supreme Court for protecting his fundamental rights. According to article 226, a person may approach the High Court for the same reasons as mentioned above, however, it is not necessary that the right should be a fundamental right in order to take legal action under these provisions.

Public Interest Litigation may be filed in the apex court or the high court against the government by virtue of article 32 and 226 for the protection of rights of the child.

Some of the other important acts, legislations and policies framed by the government for the protection of child right are

  • Indian Penal Code, 1860
  • Guardian and Wards Act, 1890
  • Child Marriage Restraint Act, 1929
  • Immoral Traffic Prevention Act, 1956
  • The Women’s and Children’s Licensing Act, 1956
  • Probation of Offenders Act, 1958
  • Child Labour (Prohibition and Regulation) Act, 1986
  • Juvenile Justice (Care and Protection of Children) Act, 2000
  • Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2000
  • Protection of Children from Sexual Offences Act, 2012
  • Orphanages and other Charitable Homes (Supervision and Control) Act, 1960
  • National policy for Children, 1974
  • Bonded Labour System (Abolition) Act, 1976
  • Prevention of Illicit Traffic in Narcotic Drugs and Psychotropic Substance Act, 1987
  • Prohibition of Child Marriage Act, 2006
  • The Child Labour (Prohibition and Regulation0 Amendment Act, 2017

 

Conclusion

The rights of the child need to be protected in order to promote the well-being of the child since they require more protection than other people who have attained majority due to the set of unique needs stemming from their vulnerabilities.  Every single child of the country deserves equality, no matter what colour, race, religion, language, gender define them.

Children with their development process can flourish and in turn, benefit the nation as they are the future of the Country. India, with the help of various international and national mechanisms, is constantly trying to secure the rights of the children.

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Delay of Condonation

By: admin Civil 29 Jul 2019

Condonation of Delay is defined under section 5 of the Limitation Act, 1963. It is the extension of the prescribed period in some instances to make an application or go for an appeal. Section 5 of Limitation Act is not applicable for filing suit as it is an exception to the Act. For taking the benefit of the Doctrine, the applicant must have sufficient cause to condone the delay. It is the discretion of the Court to do so after the applicant states sufficient reason. The Doctrine applies only to the Criminal Proceedings because it does not prohibit any other Sections.
 
To file an appeal, the Code of Civil Procedure has not prescribed a period of limitation. Whereas the Limitation Act, 1963 has provided the period to file an appeal in the court. It is stated that the appeals can be filed in a High Court against a decree or order within ninety days.  And in any other court, the appeal can be filed within thirty days from the date of the decree or order. The period to file the limitation is for the general welfare. As the law is enacted to protect only diligent and vigilant people, courts shall be convinced with a sufficient cause to get the delay to be condoned. 
 
Following are some reasons for filing an application of Delay Condonation:
 
  1. Mislead by rulings
  2. Mistake of counsel
  3. Mistake of law
  4. Mistake of Court
  5. Delay in getting certified copies
  6. Imprisonment
  7. Illness
  8. Inability to act, etc. 
 
Condonation of delay, Rule 3-A: For the proceedings of delay condonation, rule 3-A has been inserted by the Amendment Act of 1976. Rule 3-A states that when an appeal is presented before the court after the expiry of the specified period, it shall be accompanied by an application consisting the sufficient cause for not going for an appeal within the time.
 
Before inserting rule 3 - A, in the amendment Act, the general practice was to admit an appeal subject to an opinion regarding limitation.
 
In the case of  State of M.P vs Pradeep Kumar, the SC stated that the provision described is two-fold in the rule;
 
  1. to inform the appellant that the delayed appeal will not be entertained unless an application accompanying the delay accompanies it.
  2. to communicate with the respondent that he is willing to do so on the merits mentioned. The provision is directory and not mandatory. 
 
The practice of the Supreme Court in filing the Delay condonation for the special leave petition:
 
The Special Leave Petition must be filed within ninety days from the date of the order of the High Court. If the petition is filed after the expiry of that period, then an application of delay condonation must be filed, stating the reasons for not filing the petition within the specified time. The SC has the power to condone the delay in filing a special leave petition under exceptional circumstances. The petitioner has to explain the delay of each and every day. The court has the power of not condoning the delay if the reasons given to the petitioner does not convince it. Moreover, if the court satisfies with the sufficient cause that prevents the petitioner from filing the petition, it would issue a notice to the respondent to mention the reason for why the delay of the petitioner shall not be condoned.
 
Limitation ACT
 
Subject to the provisions of Sections mentioned in the limitation act, 1963, every petition instituted, appeal preferred, and the application filed after the prescribed period is dismissed. As per Section 3(1)  'Period of limitation’ means the period prescribed for any suit, appeal or application by the Act and meaning of ‘prescribed period’ means the period of limitation computed as per provisions of the Act.
 
The Act has prescribed the period in the Schedule of Act. The prescribed period is as follows:
 
  1. For a suit relating to contracts, accounts, declarations, recovery of lawsuits. Suits relating to movable property, etc. the prescribed period is three years.
  2. For suits relating to possession of the immovable property, the period is 12 years and for suits related to the mortgaged property, the period is 30 years.
  3. For suits relating to torts, one year is the prescribed period. Moreover, in the case of compensation for three years. 
  4. In case of an appeal under the Civil Procedure Code and Criminal Procedure Code - 30 to 90 days.
 
Section 4 states the provision that, if the court is closed on the last day of limitation, the suit, application or an appeal can be filed on very next day when the court reopens. It is based on the principle "actus curiae neminem gravabit", which means that an act of court shall not prejudice anyone. The court can condone the delay if satisfied that it causes were beyond the control of the plaintiff.
 
Section 9 of the limitation act states that when the limitation period starts running, it continues when there is any disability or inability to make an application. However, if the person is disabled at the time of filing a suit or an application, the limitation period will start after the disability of the person is removed.
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Contempt of Court

By: admin Civil 10 Jul 2019

Contempt of Court is any conduct that disrespect or disregard for interfering with or prejudice parties or with their witnesses during the litigation before the respective authority and administration of law. The Contempt of Courts Act, 1971 governs the contempt law in India.

The act empowers the Supreme Court and High Court to punish acts of contempt. The Supreme Court and High Courts being courts of record have the constitutional validity to punish for contempt of Court and the Contempt of Courts Act, 1971, according to the jurisdiction. Contempt of Court can be understood as an offence of defying the court authority by disobeying the instructions laid by the court. The Act defines civil contempt under section 2(a) as contempt of court means civil contempt or criminal contempt. The two types of contempt are different in character and very difficult to differentiate.

Section 2(b) of the 1971 Act not only encompasses willful disobedience to any judgment, decree, direction, order etc. of a court, it also takes in its fold a willful breach of an undertaking given to a court of law. The civil contempt is wrong of private nature. It injures the interests of the party, entitled to get benefit from the disobeyed order, whereas criminal contempt is an offence against the society where the contemner undermines the authority of the Court by his words or actions.

Section 2 (c) defines the ‘criminal contempt' as the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act, whatsoever which;
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner.

Also, Article 129 and 215 of the Constitution of India empowers the court to take action against the contempt. Article 129 empowers the Supreme Court whereas Article 215 empowers High Courts. Whereas, Section 10 of The Contempt of Courts Act, 1971 has given them special powers to the respective High Courts to punish contempt of subordinate courts.

Article 129, of the Constitution of India, states that the Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Article 215, of the Constitution of India, states that every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.

Procedure

The procedures laid as per the Contempt of Court Act, 1971 has to be followed, as mentioned in Article 129 and 215 of the Constitution of India. An individual can recourse to the following options against the contempt.

1. He may place the information before the Court and request the Court to take action.
2. He may put the information before the Attorney General and request him to take appropriate action.

The contemnor alleged is entitled to get a notice about the same an opportunity of being heard, before considering him guilty of contempt and passing an order. 

Punishment

  1. Supreme Court and High Court are bestowed with the power to punish the contemnor for the contempt of the Court.
  2. As per Section 12 of Contempt of Court Act, 1971, the punishment for the contempt of court can be the simple imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or with both.
  3. However, in civil cases, if the Court considers that a penalty is not meeting the ends of justice and that a sentence of imprisonment is necessary then the court shall instead of sentencing him to simple imprisonment, direct that he be detained in civil prison for such period not exceeding six months as it may think fit.

The punishment awarded to an accused may be discharged on apology being made by the accused to the Court's satisfaction. An excuse cannot be rejected on the grounds if accused makes it bonafide.

Limitation

Section 20 of the Contempt of Courts Act, 1971 defines the limitation period within which the actions have to be taken against the contempt. It specifies that the limitation period is of one year from the date on which the contempt is alleged to have been committed.

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Procedure to be followed in Civil Recovery Proceedings

By: Advocate Ayantika Mondal Civil 03 Sep 2019

The step-wise procedure to be followed in Civil Recovery Proceedings;

Step 1: Preparation of Plaint - Initially, for the preparation of a plaint, the basic principle of law must be kept in mind while drafting a plaint. The draft must include the material fact, contentions, prayer clause, date and cause of action, jurisdiction, etc. It should be ensured that the Plaint is made in a specific manner and as per legal requirements. Once the Bank files a plaint, it will be addressed as a plaintiff in the whole petition.

Step 2: Remittance of Court Fees & filing the Plaint - Court fee is calculated as per the provisions of Court Fees Act of particular State. Court Fees Act prescribes the ‘Court Fee’ as per the subject matter of specific litigation.

Step 3: Process of service - In order to complete process of service upon the defendant/Defendants, the Court allots a serial number to the case once it is filed, with a prefix indicating the type of the case. (Like "O.S" for "Original Suit"). The judge directs to issue a notice to the Defendant and also gives the date for proceeding with the matter. Accordingly, the notice is issued informing the defendants about the case been filed by the plaintiff against him, and he should appear before the court personally or through a lawyer on the date of matter.

Step 4: Preliminary hearing - On the preliminary hearing, after appearing before the court the defendant can file the written statement on his behalf, and the next date of hearing will be fixed by the court. Usually, a court allows the defendant to file his written statement within a period of 30 days. However, it may exceed a maximum of 90 days.
 
Step 5: Filing a written statement by the Defendant - When a defendant files his written statement in the Court, he would deny all the assertions in the Plaint and compel the plaintiff to prove every claim. This is also another way to prolong the outcome of the case, which may not be in favour of the Defendant if the plaintiff happens to have a bonafide case.

Step 6: Framing of Issues - A list of disputed questions of fact and law are called issues framed by the court which the plaintiff has to prove on the basis of evidence. The points mentioned by the plaintiff in his plaint, which is not expressly disputed by the Defendant, need not be proved.

Step 7: Defendant (both borrower as well as guarantors) take steps to dispose of most of their assets (including hypothecated assets) –  The following steps should be taken immediately after the suit is filed:
  1. Appointment of interim receiver and application for a temporary injunction.
  2. Interim attachment or injunction and interim sale.

Step 8: Evidence - After the issues are framed, the case is posted for evidence.

(a) Filing documents & leading evidence – After taking the evidence of the plaintiff into consideration, the witnesses if any, on behalf of the Plaintiff step into the witness box to narrate the facts of the case. All witnesses of the Plaintiff will be cross-examined by the lawyer of the Defendant. This process is called"leading evidence.”

(b) Evidence by the Defendant - The defendants is allowed to file any documents which he wants to produce before the court. The witnesses on behalf of the Defendant are cross-examined by the Plaintiff (i.e., by the Plaintiff's lawyer). After the evidence of both sides is filed, the case is adjourned for final arguments.

(c) Closing Arguments - The lawyers representing both the parties are asked to present their closing arguments before the court. It is possible that the judge may not be able to read and assimilate lengthy documents covering evidence on both sides, but he is accustomed for the quick perception of what is stated in the arguments. Documents are not read during the proceedings, and they have to be studied leisurely by the Judge, after court hours.
 
Step 9: Pronouncement of Judgment & passing of Decree - After concluding the arguments of both parties, the judge may reserve his order to be pronounced on a later date or may deliver the same immediately. Both parties may apply to the Court for a copy of the Judgment.

Step 10: Execution of the Decree - The party in whose favour the Decree is passed is called the decree-holder. The other party is called the Judgment Debtor. The Judgment debtor has to implement the Court's decree. If he fails to implement, the decree-holder can file an execution petition before the Court.

Step 11: Appeal - When a decree has been obtained by the Bank in its favour in the suit filed against the borrower and the guarantor, prompt steps should be taken for execution of such decree for recovery of the Bank’s dues.

Step 12: Filing of Appeal - Where the suit is decreed in favour of either of the party, the aggrieved party may prefer an appeal, if there are valid grounds of law and/or facts to prefer an appeal. The Court, immediately higher in the hierarchy is the Court to which an appeal can be filed. The appeal has to be filed within 30 days from the date of the decree.

Step 13: Execution of Money Decree - Even if the Judgment debtor files an appeal against the Bank before the Appellate Court challenging the money decree passed by the lower Court in Bank’s favour, the Bank should nevertheless proceed to apply for the execution of the decree passed by the lower Court notwithstanding the pendency of such an appeal unless a stay order or injunction order is granted by the Appellate Court restraining the Bank from executing the decree.

The process as above appears very simple, but in real life, the litigation is dragged for several months and even years. This is not only due to the delaying tactics adopted by the Defendant but also due to an enormous backlog of litigations piled up and pending in civil courts.


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