constitutional provision to protect children from substance use

1. Constitution and Legislative Attempt:
toward Protection of Children Affected
by Substance Abuse
Rajeev Kumar
Senior Research Fellow, IIT Kharagpur
Visiting Faculty, RKMVERI, Ranchi

2. Right of children
• The UNCRC outlines the fundamental human rights that
should be afforded to children in four broad classifications
that suitably cover all civil, political, social, economic and
cultural rights of every child:

3. Rights of children
• Right to Survival:
• Right to be born
• Right to minimum standards of food, shelter and
clothing
• Right to live with dignity
• Right to health care, to safe drinking water, nutritious
food, a clean and safe environment, and information to
help them stay healthy
• Right to Protection:
• Right to be protected from all sorts of violence
• Right to be protected from neglect
• Right to be protected from physical and sexual abuse
• Right to be protected from dangerous drugs

4. Rights of children
• Right to Participation:
• Right to freedom of opinion
• Right to freedom of expression
• Right to freedom of association
• Right to information
• Right to participate in any decision making that involves
him/her directly or indirectly
• Right to Development:
• Right to education
• Right to learn
• Right to relax and play
• Right to all forms of development – emotional, mental
and physical

5. Efforts made so far…
• 2014 Nobel Peace Prize awardees—Ms. Malala
Yousafzai and Mr. Kailash Satyarthi have reminded us all
of the need to keep on advancing in providing
opportunities that has an important effect on all children.
• The opportunities are meant to be meaningful enough to
allow them to learn and gain the mindsets and skills that
would empower them to be free, develop themselves,
their communities and the world.

6. Ms. Malala Yousafzai,
• On the other hand, when one thinks of Ms. Malala
Yousafzai, the first thing that pops in one’s mind is
education.
• The second is—education for girls. In 2009, when she
was just 11, she wrote to BBC about the norm of banning
female education under the Taliban regime in the Swat
Valley (her hometown).
• Her article gained tremendous momentum worldwide.
• She started her fight for the education of girls at that small
age and began to speak publicly and to the press, which
caused her and her family receive constant death threats.

7. Child rights and Indian constitution
• Right to free and compulsory elementary education for all
children in the 6-14 year age group (Article 21 A)
• Right to be protected from any hazardous employment till
the age of 14 years (Article 24)
• Right to be protected from being abused and forced by
economic necessity to enter occupations unsuited to their
age or strength (Article 39(e))

8. Continued….
• Right to equal opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity
and guaranteed protection of childhood and youth against
exploitation and against moral and material abandonment
(Article 39 (f))
• Right to early childhood care and education to all children
until they complete the age of six years (Article 45)
• Besides, Children also have rights as equal citizens of
India, just as any other adult male or female:

9. Some other rights
• Right to equality (Article 14)
• Right against discrimination (Article 15)
• Right to personal liberty and due process of law (Article
21)
• Right to being protected from being trafficked and forced
into bonded labour (Article 23)
• Right of minorities for protection of their interests (Article
29)
• Right of weaker sections of the people to be protected
from social injustice and all forms of exploitation (Article
46)
• Right to nutrition and standard of living and improved
public health (Article 47)

10. Juvenile Justice (Care and Protection
of Children) Act 2015

11. Background
• The first proper intervention by the government of India in
justice for children was via the National Children’s Act,
1960.
• This act was replaced later with Juvenile Justice Act,
1986. In 1992, India ratified the United Nations
Convention on the Rights of the Child (UNCRC).
• To adapt to the standards of the convention, the 1986 act
was repealed and the JJ Act, 2000 was passed.
• The JJ Act 2000 dealt with two categories of children viz.
‘child in conflict with law’ and ‘child in need of care and
protection’. As per JJ Act, 2000, a juvenile is a person
who is below 18 years of age.

12. Continued…..
• This act has a provision that a child in conflict with
law cannot be treated as an adult.
• If a child is convicted for any offence, he may spend a
maximum of three years in institutional care.
• This act empowered the Child Welfare Committees
(CWCs) to deal with child in need of care and protection.
• Juvenile Justice Boards (JJB) were empowered to deal
with child in conflict with law.

13. Why this act was amended?
• he National Crime Records Bureau (NCRB) data shows
that there has been an increase of offences committed by
juveniles, especially in the age group of 16-18.
• One of the perpetrators in the Delhi gang rape of 2012
was few months short of 18 years age and he was tried
as juvenile.
• He was sent to reformation home for three years and was
released in December 2015.
• This had raised the public demand for lowering the age of
juveniles under the act.
• The 2000 act was also facing implementation
issues particularly in cases of adoption.

14. Category of children
• Children in conflict with law
• Children in need for care and protection

15. Children in conflict with law
• It treats all the children below 18 years equally, except
that those in the age group of 16-18 can be tried as adults
if they commit a heinous crime.
• A child of 16-18 years age, who commits a lesser offence
(a serious offence), may be tried as an adult if he is
apprehended after the age of 21 years.
• A heinous offence attracts a minimum seven years of
imprisonment.
• A serious offence attracts three to seven years of
imprisonment and a petty offence is treated with a three
year imprisonment.
• No child can be awarded the death penalty or life
imprisonment.

16. Children in conflict with......continued
• It mandates setting up of Juvenile Justice Boards (JJBs)
in each district with a metropolitan magistrate and two
social workers, including a woman.
• The JJBs will conduct a preliminary inquiry of a crime
committed by a child within a specified time period and
decides whether he should be sent to rehabilitation centre
or sent to a children’s court to be tried as an adult.

17. JJB continued….
• The board can take the help of psychologists and psycho-
social workers and other experts to take the decision.
• A Children’s court is a special court set up under the
Commissions for Protection of Child Rights Act, 2005, or a
special court under the Protection of Children from Sexual
Offences Act, 2012.
• In absence of such courts, a juvenile can be tried in a
sessions court that has jurisdiction to try offences under
the Act.

18. Children in need of care and protection
• Child Welfare Committees (CWCs) should be set up in
each district with a chairperson and four other members
who have experience in dealing with children.
• One of the four members must be a woman.
• The committee decides whether an abandoned child
should be sent to care home or put up for adoption or
foster care.

19. Salient features
• The Central Adoption Resource Agency will frame rules
and regulations for adoption of orphaned children.
• Inter-country adoption is allowed when no Indian
adoptive parents are available within 30 days of child
being declared free for adoption.
• Adoptive parents should be financially and physically
sound. A single or divorced person may adopt a child.
• A single male may not adopt a girl child. Disabled children
will be given priority for adoption.

20. Salient features continued….
• Children in need of care and protection can allowed to be
placed in foster care based on the orders of the CWC.
• The selection of the foster family is based on the family’s
ability, intent, capacity and prior experience of taking care
of children.
• Buying and selling of a child attracts imprisonment up to
five years.
• Giving an intoxicating or narcotic substance to a child
attracts imprisonment up to seven years.
• Institutions for child-care must be registered. Corporal
punishment of children in child-care institutions is also
punishable.
• Non-disclosure of identity of juvenile offenders by media.

21. Summary of Provisions
• The JJ Act 2000 empowers the Juvenile Justice Board, which
has psychologists and sociologists on board, to decide if a
juvenile criminal in the age group of 16–18 should tried as an
adult or not.
• It has also tried to make the adoption process of orphaned,
abandoned and surrendered children more streamlined
• while adopting some of the concepts from the Hague
Convention on Protection of Children and Cooperation in
Respect of Inter-Country Adoption.
• Further, the act has introduced foster care in India under
section 44.
• As per this, the families would sign up and the abandoned,
orphaned children or those in conflict with the law would be
sent to them.

22. Salient features
• Such families will be monitored and shall receive financial
aid from the state.
• The law has also made provision that while adopting
child, priority is given to disabled children and physically
and financially incapable children.
• The parents who are giving up their child for adoption get
3 months to reconsider their decision {It was earlier 1
month}.
• The law mandates that any person giving alcohol or drugs
to child would be punished with 7 years imprison or Rs. 1
Lakh fine or both.
• A person selling a child would be imprisoned for five years
or Rs. 1 lakh fine or both.

23. Continued …
• Inclusion of new offences committed against
children - Several new offences committed against
children, which are so far not adequately covered under
any other law, are included in the Act.
• These include: sale and procurement of children for any
purpose including illegal adoption, corporal punishment in
child care institutions, use of child by militant groups,
offences against disabled children and, kidnapping and
abduction of children.

24. Continued
• Penalties for cruelty against a child, offering a narcotic
substance to a child, and abduction or selling a child have
been prescribed. Any official, who does not report an
abandoned or orphaned child within 24 hours, is liable to
imprisonment up to six months or fine of Rs 10,000 or
both.
• The penalty for giving a child intoxicating liquor, narcotic
or psychotropic substances is imprisonment up to seven
years or fine of one lakh rupees, or both.

25. Rehabilitation
• Several rehabilitation and social reintegration measures have
been provided for children in conflict with law and those in need
of care and protection.
• Under the institutional care, children are provided with various
services including education, health, nutrition, de-addiction,
treatment of diseases, vocational training, skill development,
life skill education, counselling, etc to help them assume a
constructive role in the society.
• The restoration and protection of a child shall be the prime
objective of a Children‘s Home/ Specialized Adoption Agency/
Open Shelter.
• The Child Care Institution shall prepare Individual Care Plans
for children in need of care and protection or children in conflict
with law, preferably through family based care.
• Any child leaving a child care institution on attaining 18 years of
age may be provided with financial support.

26. Few case studies

27. Case-1
• (Reshma Tamir, 16, Mumbai)
• The Tamirs were a picture-perfect family until two years ago.
The parents were wealthy investment bankers with a plush
home in south Mumbai’s exclusive Peddar Road area. The
family went on vacations abroad every year and the parents
plied their only child, Reshma, with gifts.
• But underneath the surface, the parents had been
disconnected and unhappy for years and, in 2011, got a
divorce.
• With their long working hours, Reshma ended up in her father’s
custody, with her paternal grandparents the main care-givers.
Reshma’s mother moved back to her parents’ home in Cuffe
Parade; her father travels abroad much of the time for work.

28. Case-1…cont
• Then she attended a party at a friend’s house and tasted
alcohol for the first time.
• “She had seen her parents drink a peg after work every day to
relax, so she thought it was normal to consume alcohol,”
• As Reshma became a regular drinker, she was introduced by
her friends to different types of alcohol, cigarettes and
eventually cannabis. “Her friends reinforced her impression of
these substances by telling her it was ‘cool’ to be doing these
things,” says Ganega.
• Her grandparents, meanwhile, gave in to all her demands for
additional ‘pocket money’ because they did not want to add to
the trauma and loss that she had recently suffered. She was
allowed frequent stay overs at friends’ home and her curfew
deadline was extended until later and later at night

29. Case 1…..cont
• “It was her uncle who first raised an alarm,” “asking why
she was always going to stay at friends’ homes and never
invited anyone home herself.”
• Suspicious when she had no clear answers to his
question, the uncle confiscated her phone and read her
messages. There, to his horror, he found mentions of
cannabis.
• Confronted, Reshma confessed that she had become a
regular user of alcohol, brown sugar, cannabis and
tobacco, in whatever form was available.

30. Case-1….cont..
• “There is little balance in parenting and child-care among
the middle classes these days,” says Ganega. “The guilt
of working long hours and being emotionally unavailable
makes parents and guardians give in to potentially
dangerous demands, makes them reluctant to use the
word ‘no’.”
• This is one of the main reasons why a rising number of
children in the middle classes are resorting to addictive
substances.
• Even after an addiction is revealed, parents react in
damaging ways,. “They either try to hush up the matter for
fear of what others will say, or they start playing a blame
game, eager to disown responsibility for what has
happened.”

31. Case-2 Prashant, 13, Delhi)
• (Prashant was seven years old when he first sniffed an
inhalant. In the years to come, he consumed a range of
substances including cannabis and injectable drugs.
“There was a time when the powder was not enough for
me. I had to use injection to get a high,” he recalls
nonchalantly, sitting in the campus of SPYM centre for
children in Delhi where he is being counselled for de-
addiction.
• Prashant, now 13 years, says it all began when he puffed
a cigarette to emulate one of his seniors in school.
Gradually, he moved on to serious substances. Pocket
money- Rs 10 per day- was too less to buy him his daily
dose.

32. cont
• He started stealing metal articles and selling them off to make money.
“Burnt bronze would get me Rs 350 per kilogram; brass was Rs 250
per kilogram.
• I also stole batteries from cars and motorcycles. Last year, I
accompanied a gang of thieves. But I was not the leader...just a
member” he recalls.
• After every such heist, Prashant and his gang would celebrate their
success by trying the latest drugs in the market, he says. With his
little hands, he enacts the process of preparing the powder, rolling it
into a pipe, inhaling, holding it till it reaches the lungs and then slowly
releasing it.
• “Smack used to make us feel hungry and weak. We had to eat bread
and butter immediately after that,” he says. Prashant’s family of six
resides in a slum cluster in the Dwarka area.
• His father works in an export company and is the only earning
member in the family. When Prashant dropped out of school after
class III, he says a tiff with a class mate was the reason behind it, it
was hardly an issue in the family.

33. Case-2: conclusion
• His parents had no idea that he was into substance
abuse. If they did, they never discussed it with him. Six
months ago, one of the gang members tipped off police
about him which lead to his arrest. He was produced in
front of the Juvenile Justice Board which referred him to
the centre for de-addiction.
• “His detoxification is over. Now, we are giving him
behavioural therapy and making him participate in group
activities

34. Case-3: (Dipendra Kumar, 26, Uttarakhand)
• Karnprayag resident Dipendra Kumar had lost himself in
cannabis consumption for more than eight years before he
could gather courage to quit after being huddled into a
rehabilitation centre in Dehradun by his parents for more than
six months. Kumar, 26, now runs a grocery shop.
• He took to cannabis smoking when he was 13 years old, a
student of class VIII at a local government school.
• “I began taking Charas (cannabis) out of the desire to do
something unconventional and feel the ecstasy. I travelled 30
kilometers at a stretch to Rudranath with friends to have my
first puff of the cannabis ‘chillum’. Initially it was for fun, but
soon I started enjoying cannabis chillums and was hooked to it.
Later I released that it was addiction. I would finish 14-15
chillums a day” says Dipendra.

35. Case-3: In a different world for nine years
• Son of a retired army personnel and one of four siblings in the
family, Dipendra had no family history of addiction, barring his
father’s occasional alcohol consumption. “I was in a world of
my own for nearly nine years. I was not aware of the places of
my movements. I used to leave home late in the night and stay
at local crematorium.
• Walking as far as 80 kilometers for no reasons and enjoying
the company of others cannabis addicts had become part of
my daily routine” says Kumar. However, Dipendra is a happy
man today as he has given up cannabis addiction completely.
• “My father and brothers tied me with ropes and took me to a
rehabilitation centre in Dehradun. I stayed there for six months
and underwent a de-addiction course with constant monitoring
by the counsellor. He proved to be a God-man for me. Good
counsellors and the will power to cure oneself are the only
ways to cure your addiction” says Kumar.

36. Conclusion
• Discussion on all the cases
• Possibility of child care protection act
• Analysis of all cases: views of participants

37. Reference
1. https://www.smilefoundationindia.org/child_rights.html
2. http://haqcrc.org/child-rights/constitution-of-india/
3. http://vikaspedia.in/education/child-rights/juvenile-
justice-care-and-protection-of-children-act-2015
4. https://www.hindustantimes.com/india/juvenile-
substance-abusers-in-india-catching-them-young/story-
wZa4Mj3eXisFW1zQisPTJJ.html