1. Introduction
The ongoing efforts by the Committee on the Rights of the Child to draft General Comment No. 27 on children's rights to access to justice and effective remedies are particularly significant in the context of the UN Convention on the Rights of the Child (UNCRC) and India's legal framework for child welfare. As highlighted in the concept note for General Comment No. 27, access to justice is crucial in combating inequalities, challenging discriminatory practices, and restoring denied entitlements. This aligns with India's commitments under the UNCRC, which it ratified on December 11, 1992. The Convention has profoundly influenced the development of domestic legislation, most notably the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJA).
The Committee's concept note underscores the need for States to establish accessible and effective complaint mechanisms, a goal that resonates with the objectives of India's child welfare laws. This submission examines how Indian courts have incorporated these principles in their rulings, particularly in cases involving the welfare of children, such as inter-parental child removal. These cases often illustrate the balance that courts must strike between protecting the best interests of the child and ensuring that legal safeguards and protections are upheld. States should take to implement the right of all children to access justice and effective remedies when their rights under the UNCRC are violated in the face of lack of child-friendly legal processes and the barriers to legal standing. India's legal system, while robust in many respects, often struggles with ensuring that children's rights are fully justiciable and that appropriate remedies are accessible. This submission also discusses how India's judiciary is gradually addressing these challenges, aligning its practices with international standards to better protect children's rights.
2. Discussion on Provisions and their Application
The Preamble of the JJA 2015 emphasizes the Act’s purpose to consolidate and amend the law concerning children alleged and found to be in conflict with the law, and those in need of care and protection. It highlights the importance of catering to the basic needs of such children through care, protection, development, treatment, and social reintegration. The Act adopts a child-friendly approach in adjudication and rehabilitation processes to ensure the best interests of children. The Preamble references constitutional provisions that confer powers and impose duties on the State to protect children's rights.
Specifically, it cites Article 15(3), which allows the State to make special provisions for children; Articles 39(e) and (f), which require the State to ensure that children are not abused and are given opportunities for healthy development; Article 45, which mandates free and compulsory education for children; and Article 47, which concerns raising the level of nutrition and standard of living for all citizens, including children. The Preamble references constitutional provisions that confer powers and impose duties on the State to protect children's rights. Specifically, it cites Article 15(3), which allows the State to make special provisions for children; Articles 39(e) and (f), which require the State to ensure that children are not abused and are given opportunities for healthy development; Article 45, which mandates free and compulsory education for children; and Article 47, which concerns raising the level of nutrition and standard of living for all citizens, including children. However, the implementation of such legislation often encounters significant obstacles.
One of the main challenges is the inconsistency in the application of laws across different jurisdictions in India. All Courts have the authority to interpret and enforce laws, but the outcomes can vary significantly depending on the case specifics and the court's interpretation. In cases involving cross-border child custody disputes where one parent seeks to retain a child in India against the wishes of the other parent residing abroad, Indian courts have had to balance domestic legal principles with international obligations under the CRC and other treaties like the Hague Convention on the Civil Aspects of International Child Abduction, which India has not ratified. By joining, this approach, of membership, can lead to decisions that favor the more dominant parent, rather than genuinely reflecting the best interests of the child. Such determinations in India can benefit the abducting parent, undermining the role of the court in the child's home country, which is better equipped to consider the child's long-term interests. The Hague Convention's approach quickly restores the status quo and ensures that custody decisions are made by the appropriate court in the child's country of origin.
India's non-membership in The Hague Convention may also discourage foreign courts from allowing children to visit India, as there is no guarantee of the child's swift return. Conversely, joining the Convention could facilitate the return of children abducted from India to member countries. The Hague Convention provides a structured framework for resolving custody and contact issues across borders, preventing conflicting decisions from courts in different countries and ensuring that such matters are adjudicated in the best interest of the child by the authorities in the child’s habitual residence.
3. Barriers to Accessing Justice
This position of law is binding on all Courts in India under Article 141 of the Constitution which is law laid down by the Supreme Court binding on all courts in India. However, in respect of an older child/ children, best interest and welfare of child/ children will be the determining factor for an Indian Court to adjudicate custody disputes of children. If the child/ children are old enough to make an intelligible preference, the court may ascertain the wishes of the child/ children for making a decision. Superior earning capacity of a parent may however, not be an influencing factor in determining child/ children custody rights.
Several barriers prevent children from effectively accessing justice in India. Legal barriers include the complex and often slow judicial process, which can be particularly daunting for children and their guardians. The requirement for legal standing, the costs associated with legal representation, and the procedural complexities can all serve as significant deterrents. Moreover, there is often a lack of child-friendly judicial processes, which can further alienate children from the justice system.
4. Specific Challenges in Cross-Border Cases
India's legal system faces particular challenges in handling cases involving the cross-border movement of children, such as when a parent unlawfully retains a child in India. In such scenarios, the parent seeking the child's return may face significant legal and practical obstacles. The Indian courts, while considering the best interests of the child, may sometimes be hesitant to enforce foreign court orders, particularly if they perceive such orders as conflicting with domestic law or the child’s welfare. In such scenarios, the parent seeking the child's return may encounter substantial legal and practical obstacles. Indian courts, while prioritizing the best interests of the child, may be hesitant to enforce foreign court orders if they perceive these orders as conflicting with domestic law or the child's welfare. This approach can lead to prolonged legal battles and uncertainty for the parties involved. One of the primary legal remedies available to the parent seeking the child's return is to file a petition for habeas corpus. However, Indian courts do not always summarily return the child to the requesting parent. Instead, they exercise their parens patriae jurisdiction, which allows them to act in the best interests of the child, even if it means deviating from the foreign court’s ruling.
For example, in the case of Surya Vadanan v. State of Tamil Nadu, the Supreme Court of India held that while the principle of comity of courts—respecting the judgments of foreign courts—should be considered, the welfare of the child remains paramount. The Court ruled that it would not automatically return the children to the UK, despite the father having obtained a custody order there. The Indian courts conducted an independent assessment of the children's welfare and determined that they should remain in India, highlighting the complex interplay between respecting foreign judgments and prioritizing the child’s welfare. Similarly, in Nithya Anand Raghavan v. State (NCT of Delhi), the Supreme Court of India reiterated that the welfare of the child is the paramount consideration and that a foreign court's order is not conclusive in determining the child's custody. In this case, despite a UK court granting custody to the father, the Indian Supreme Court decided that the child should stay in India with the mother, as it was in the best interest of the child. The Court emphasized that each case must be judged on its own facts, and the foreign court's order, while persuasive, is not binding.
Moreover, children from minority communities and those living in poverty often experience intersecting forms of discrimination. In Madhu Kishwar & Ors. v. State of Bihar, the Supreme Court recognized the challenges faced by tribal women, who were doubly marginalized due to their gender and socio-economic status. While this case primarily dealt with land rights, it reflects the broader issue of intersectional discrimination, which also affects children's access to justice. Children from such backgrounds may face bias from law enforcement and judicial authorities, who may be less likely to take their cases seriously or to provide the necessary accommodations for them to participate fully in legal proceedings. The lack of accommodations for children with special needs is another critical issue. In cases involving children with disabilities, the legal system often fails to provide the necessary support, such as sign language interpreters or materials in accessible formats. This exclusion can prevent children from fully participating in their own cases, leading to outcomes that do not adequately reflect their best interests.
These cases illustrate the challenges faced in cross-border child custody disputes within India’s legal framework. The courts often conduct a thorough investigation into the child's situation before making a decision, which can delay the return process and cause additional stress for all parties involved. Moreover, India's non-ratification of the Hague Convention on the Civil Aspects of International Child Abduction exacerbates these challenges. Without the Convention's framework, there is no streamlined process for the return of children wrongfully retained in India.
5. Recommendations for Enhancing Access to Justice
Addressing the challenges faced by children in accessing justice in India requires a comprehensive and multi-faceted approach. Several strategies can be implemented to improve the situation.
5.1. Consistent and Uniform Application of Child Rights Laws
One of the primary issues in the Indian legal system is the inconsistent application of child rights laws across different jurisdictions. To address this, it is crucial to establish a more uniform approach. Training for judges, law enforcement officials, and legal professionals on child rights and the specific needs of children in the justice system is essential. For instance, in Sampurna Behura v. Union of India, the Supreme Court of India highlighted the need for effective implementation of the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJA) across all states. The Court directed state governments to ensure that juvenile justice boards and child welfare committees are constituted and functional, emphasizing the importance of uniform application of the law. This case underscores the need for consistent enforcement of child protection laws and the importance of specialized training for those involved in the juvenile justice system.
Establishing child-friendly courts and procedures is another crucial step. These courts, designed to be less intimidating and more supportive of children, can help ensure that children's voices are heard and that they are treated with sensitivity throughout the legal process. The Supreme Court’s directives in Sampurna Behura also called for the establishment of child-friendly courts, recognizing the need for a justice system that is accessible and responsive to the needs of children.
5.2. Addressing Socio-Cultural Barriers
Socio-cultural barriers, including discrimination and exclusion, present significant challenges in ensuring that all children have equal access to justice. These barriers require a multi-faceted approach, including public awareness campaigns to educate communities about children's rights and the importance of protecting these rights.
The Supreme Court's ruling in Vishaka & Ors. v. State of Rajasthan, is an example of how public awareness and education can play a role in addressing socio-cultural issues. While the case primarily dealt with sexual harassment in the workplace, the guidelines issued by the Court emphasized the need for awareness-raising and education to change societal attitudes. A similar approach can be taken to address socio-cultural barriers affecting children, with campaigns designed to inform communities about the rights of children and the importance of ensuring their protection. Efforts to reduce discrimination and exclusion must also be prioritized. In Madhu Kishwar & Ors. v. State of Bihar, the Supreme Court addressed the intersectional discrimination faced by tribal women, highlighting the need for legal reforms that take into account the unique challenges faced by marginalized groups. Applying this principle to children, it is essential to ensure that legal reforms and policies are inclusive and address the specific needs of children from marginalized communities, including those with disabilities, from minority groups, or living in poverty.
6. Conclusion
In addressing the challenges faced by children in accessing justice in India, it is essential to recognize the multifaceted nature of the barriers that exist. From the inconsistent application of child rights laws across different jurisdictions to the significant socio-economic and practical barriers that many families encounter, the need for a more structured and unified approach is evident. Case law in India has demonstrated the judiciary's willingness to protect children's rights, as seen in landmark cases such as Sampurna Behura v. Union of India and Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, but these efforts must be supported by systemic reforms. The establishment of child-friendly courts, enhanced legal aid services, and training for legal professionals on the specific needs of children are crucial steps in this direction. Furthermore, India's handling of cross-border child custody disputes, as highlighted in cases like Surya Vadanan v. State of Tamil Nadu and V. Ravi Chandran v. Union of India, underscore the need for a centralized authority to manage such cases and ensure compliance with international obligations. Ratifying international conventions such as the Hague Convention on Civil Aspects of International Child Abduction would provide a clear framework for resolving these disputes and protecting the best interests of the child.
Finally, addressing socio-cultural barriers through public awareness campaigns and efforts to reduce discrimination and exclusion is vital to ensuring that all children, regardless of their background, have equal access to justice. Strategic litigation, as seen in Unni Krishnan, J.P. & Ors. v. State of Andhra Pradesh & Ors., can be a powerful tool in driving these necessary reforms. In conclusion, a coordinated effort involving legal reforms, capacity building, public education, and international cooperation is essential to enhance access to justice for children in India. The alignment of national efforts with the Committee’s recommendations in General Comment No. 27 will ensure that all children in India are afforded the protection and support they deserve, ultimately contributing to the creation of a more just and equitable society.
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