A study of Child Rights in Nepal : Internship report for LL.B.

        A study of Child Rights in Nepal  : Internship report for LL.B.
                       Most important materiel for Law students.

CHAPTER I

INTRODUCTION

1.1 General Background

Children are the symbols of continuity who don’t only assist the development of human beings, but also are capable of understanding and conserving the movement of the entire world and the environment. The children of today will be adults of tomorrow. They are foundation stone of the economic and social development. Children, as future citizens, can be considered as a change agent to bring systematic transformation in the society. They are raw and what we spend implicitly & explicitly to them today leads to what we will get tomorrow. They are raw in the sense that they are growing, developing and strengthening mentally and physically and can be shaped as we dream of future. A good today for them will bring a good tomorrow. Their quality and prosperity will determine the kind of destiny that beckons of nation. Children are the developed brains for tomorrow and the development and protection of countries and the universe highly depend upon the development of children today.

'Childhood shows the man, as the morning shows the day', based on this concept and feeling the importance of special cares for the children, The Child Rights Convention 1959 of The UNO clearly declares the rights for children. After that, various provisions and programs for the protection of Child Rights are being managed in Worldwide Declaration of Human Rights, Commitments on Civil and political, economic, social and cultural rights, Articles of the Associations working on the behalf of Child Rights etc. and so on. In this context, Child Development, Child Protection, Child Participation and Child Survival were seemed crucial for the physical, mental as well as behavioral development of a child.  In 1959 all the countries then belonging to the United Nations agreed on the Declaration of the Rights of the Child which played an important role to preserve and protect children’s rights. Nepal also listed itself as a favoring country signing the Declaration on 14^th September 1990. The convention having 54 articles puts emphasis on Survival, Development, Protection and Participation of children.

Likewise, labor is a good deed in itself. Labor is also defined as an activity or a work, from which one desires for a outcome. These people are sought as laborious ones in our society and are given a high esteem and respect.

At present, an INGO working on the behalf of child workers in Nepal is UNICEF and activities on child protection have been started only after the restoration of democracy. After Nepal signed the UN Convention in 1990, various rules and regulations are formulated by Nepal to protect child rights. “Children Act 2048” seemed to be an important achievement for that.

1.2 Statement of the problem.

Children are receiving prime concern in the nation. Every society has moral and legal provisions related to the child and these provisions play significant roles to make future world well developed and civilized. Our country has also kept them on an important position. We can’t give a vivid explanation to children at once. There is lack of legal provisions for the conservation and implementation of child rights. Lack of clarity in the international agreements on child rights and control of child labor has created problem in action and utilization of laws and provisions declared. Those problems can be clarified on points as follows.

·        Legal provisions on child labor and child rights are not being implemented.

·        Definitions regarding children are incomplete

·        Governments are not ready to control or alleviate child labor

1.3 Objectives of the study

The main objective of this study is to identify the condition of child rights in Nepal.  The specific objectives of this study are as follows:

·        To identify the present condition of child rights in Nepal

·        To identify the legal provision of child rights and its implantation in Nepal

1.4 Rational of the study

Mentioning the roles of children, we are fully aimed towards child rights and child labor. Thus, children will be benefited by the answers of various unanswered questions related to them. Similarly, the law makers and planners also can gain a lot from this study report.

1.5 Structure of the study

This study has been structured into six chapters. Chapter one includes the general background, statement of problem, objective and rational of the study. Chapter two includes the conceptual framework where key parameters related to child rights have been explained, whereas, chapter three includes the historical development of child rights in international law and explores closely the CRC provisions. In chapter four, child right in Nepal has been explained, particularly focusing on the Constitution and the children's act. Chapter five is devoted to the major finding of the study and finally, chapter six includes the conclusion and suggestions of the study.

CHAPTER II

RELETED LITERATURE REVIEW

2.1 Conceptual Review

2.1.1 Meaning and Definition of Children

Childhood is the initial stage of human life cycle and where they need more love, care and honest treatment because they are the founding pillars of the future. Therefore, "childhood is a time when the path of one's life is influenced and perhaps the course set."

Definition of child varies from country to country. Section 2(a) of the Children’s Act 1992 defines child as every human being below the age of sixteen years. However Article 1 of the United Nations Convention on the Rights of the Child 1989 defines a 'child' as any human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. The Committee on the Rights of the Child, the monitoring body for the Convention, has encouraged States to review the age of majority if it is set below 18 and to increase the level of protection for all children under 18.

2.1.2 Theories of Child Rights

Children are young human beings. As human beings, children evidently have certain moral status. There are things that should not be done to them and should not be done to them for the simple reason that they are human. There are two competing theories, one is will theory and another is interest theory whose respective virtues and vices have been extensively debated without either gaining evident or agreed supremacy. The will theory sees a right as protected exercise of choice and the underlying property is that to have a right is to have the power to enforce or waive the duty of which the right is the correlative. Contrary, the interest theory sees a right as the protection of an interest of sufficient importance to impose on others certain durites whose discharge allows the right-holder to enjoy the interest in question.

2.1.3 General Principles of Child Rights

The Convention on the Rights of the Child 1989 trace out two major principles of interpretation in international law: the best interest of the child, and the evolving capacities of the child. Article 2 and 3 of CRC are key provisions, which set general standards that underscore and provide links with the substantive rights in the Convention. The concept that the ‘best interest’ of the child is the paramount consideration can therefore lead to an exclusively child-centered approach that fails to take into account the dynamics of other competing interest in the 8 child’s environment.7 Article 3(1) does not create rights or duties rather it is only a principle of interpretation which has to be considered in all actions concerning children.8 Likely, the main provision of Article 2 is the principle that all rights apply to all children without exception, and the State’s obligation to protect children from any form of discrimination. The State must not violate any right, and must take positive action to promote them all. The Convention expressly states that it applies to all children, whatever their race, religion or abilities; whatever they think or say, whatever type of family they come from. It doesn’t matter where children live, whether they are boys or girls, what their culture is, what language they speak, what their parents do, whether they have a disability or whether they are rich or poor. No child should be treated unfairly on any

2.1.4 Historical Development of Child Right.

If we peep into our past culture and tradition, they don’t seem to be in favor of children. No separate legal provisions were made for women and children. In the presence of law also its implementation was not satisfactory due to the failure of bringing into action. Punishments for children were comparatively less than that of the adults. Though some provisions were made in Muluki Ain, no deep responsibilities were borne for the welfare of children.

The concept of child rights emerged after World War II. The World War II caused a huge destruction of lives and property of the people and it were children who were greatly victimized by the war. Many children were caused to be orphan, homeless or disabled by the war which added difficulty and worsened their condition. The League of Nations issued a declaration about children’s rights in 1924 which mentioned the actions to be taken to protect child rights. In 1959 all the countries then belonging to the United Nations agreed on the Declaration of the Rights of the Child. Similarly, The United Nations declared to celebrate the year 1969 as an International Children Year. The government of Poland prepared a bill for the Convention of Child Rights. Discussing on the same, The UN passed and published it on 1989.

The first INGO involved on the behalf of child workers in Nepal is UNICEF and activities on child protection have been started only after the restoration of democracy. After Nepal signed the UN Convention in 1990, various rules and regulations are formulated by Nepal to protect child rights. “Children Act 2048” seemed to be an important achievement for that.

The initial non-government organization to provide the facility of shelter, food and education and carry out child welfare activities is Chhauni Children Home. This organization has been working as a child conservation home in Tahachal since 1985. Child Workers Association in Nepal (CWIN) and similar other organizations have brought forward child welfare activities as a campaign in Nepal from 1987.

Regarding the definitions of child, various visions are expressed based on bio-social environment, climate, psychology, social, economic political, cultural aspects as well as customs and abilities of the children. Normally, civic ability begins with the birth of a child and ends with the death of a man. Legal provisions for a child start from different ages in different countries. In Nepal, people below 16 years of age are regarded children.

2. Review of Previous Works

2.2.1 An article on Child Rights, Child Labor, Law and Trade Union.

Advocate Yagya Prasad Adhikari has presented an article on ‘Child Rights, Child Labor, Law and Trade Union’. They pointed the weakness and commented out that the implementation was very challenging. And also the focused on that the regulations should come in time and equal care should be given in its use and implementations.

2.2.2 International Efforts to Prohibit and Regulate Child Labor

Child rights and child labor issues started getting more importance from the decades of 90’s. for the welfare of child, Nepal has shown in many regional and international commitments. But in the implementation of development process, the principle of “Children First” has not been welcomed well. Childhood is very important and fundamental age. Children prepare their bases for the whole life in this period. If they are unable to get major fundamental bases like basic education, health, necessary cares, and appropriate culture, their life may go in vain. If they are forced in any labor in this age, they will be unable to ascertain their above mentioned fundamental rights.

In fact, the entire world is suffering from the inability to function according to the legal provisions made by child rights. Child labor is standing as a major means to deprive children from children rights. Alleviation of child labor has been a challenge from the ancient past. From the initial age of industrialization of major industrial countries, more than 50% workers out of 4,18,590 workers were found below the age of 18. These countries are well developed and prosperous now. Thus, the condition of child labor has quiet decreased. Child labor is mainly the result of illiteracy and unemployment. A study made by various child associations has also proved this fact. Besides this, children are also enforced in prostitution, house-workers and many other and they are apart from their rights.

International organizations like ILO, UNICEF, and WHO are making optimum efforts to prohibit and regulate child labor from the time of establishment. From the initial age, UNICEF is carrying out innovations and study on miscellaneous aspects of child labor and helping the world to highlight the reality behind it. In the similar way, WHO has also been providing services to the thousands of children who are far from adequate nutritious food, necessary fundamental health services and facilities.

For the continuous physical and mental development of children, ILO has prohibited the use of children in any challenging tasks. It is found that it has also provided the guarantee for the social security of the child labors.

Because of this, the child rights declaration of 1921 and the UN Convention of 1959 have also made important provisions to prohibit and regulate the child labor.

2.2.3 International Efforts and Commitments for Child Rights

With regard to the definition of human rights, it is global, pervasive and indispensable right to live as a human being. To save humans from the wars and devastations, UN made a worldwide declaration of human beings on 10^th December 1948. It states that “All human beings are born free and equal in dignity and rights”. No differentiation can be made based on child, young, male, female, cast, culture and creed. Right to live is the most prominent right for human. The fight that a free born person fights to be free from the circle of slavery is called human rights. Exploitation of human rights makes a person away from his/her right to live as a human. Thus, the principle of ‘Right for All’ was passed by the second human rights conference. Today more than 6 billion males and females are living equally from the vision of human rights. No one is superior or inferior from the point of human rights. 

After the establishment of United Nations, along with the developments of human rights, various provisions are being made related to women, men, cast, whites, blacks, Aryans, Negros, old, young, disabled and refugees. The child rights convention was signed and passed on 26^th January 1990 in the president ship of the then Prime Minister of the Interim Government of Nepal, Krishna Prasad Bhattarai. But it has not been implemented. Only about 4.2 million children are admitted in the school. Remaining are working in different places for their livelihood.

This conference emphasizes on the first declaration in favor of children and also stresses on that the UNICEF and other UN bodies should activated towards the protection of rights related to Life, Security, Development and Participation

It tries to bring almost all the countries on a common ground to accept the declaration on security and development of children. It requests all the protestant countries to agree in it. And also it states that such silence is against the laws.

The Declaration of 1924 made on Geneva had focused on the fact that children should be given intense care. The UN Convention of 1959 had clarified the child rights. The UN Convention of 20^th November 1959 stated that children need special care because of their physical and mental imperfection and such care is necessary before and after their birth. Mainly, the following rights are found to be mentioned by the children act.

·        Provision of naming and stating her/his date of birth.

·        Facilities of health and treatment, education, games and sports and entertainment should be provided

·        No discrimination should be made between daughter and son during raise up of a child.

·        No discrimination must be made between the adopted child and own children.

·        No physical, mental and any other kind of torture should be given.

·        Adopted children must be provided opportunities to meet their parents.

·        Mother’s name can be mentioned for her/his identity if father’s name is unknown.

·        The person who enforces a child to involve in a crime should feel as if ones’ own involvement in it.

·        Children should not be involved in begging activities.

·        They must not be offered to God and goddess.

·        They must not be involved in immoral deeds or professions.

On September 1990, a conference was held in New York City of America, which passed a declaration and work plan on protection and development of children. As an achievement of that program, SAARC also decided to celebrate the year 1990 as ‘Children’s Year’. The provisions for the protection of child rights can be viewed in the following three parts.

·        Perceive the fundamental rights of equality, nationality and naming (identity).

·        Perceive the right against trafficking, kidnapping and physical, mental and financial exploitation.

·        Perceive the rights regarding the provisions of better quality education, health, entertainment, games and sports and observation of cultural functions for all round development of a child.

2.3 Research Gap

CHAPTER III

METHODOLOGY

The research method designed to achieve the objectives of this study contains research design, population, sample and sampling procedure and methods of analysis and presentations of data.

3.1 Types of research

This study was mostly descriptive and analytical in nature. So, descriptive research design has used in this study. That is why; this research deals with more qualitative than the quantitative aspect of the study.

3.2 Population and Sample

3.3 Types of Data

This study is mainly based on secondary data. The secondary data has been collected from following sources:

·        Human rights 1999

·        Nepal Interim Constitution 2063

·        Child Act and regulations 2048

·        Child Justice Regulatory 2063

·        Child Rights  Convention 1989

·        Newspapers and magazines.

·        Different research article.

·        Different websites etc.

3.4 Data collection procedure

Required materials for the study will be collected from the books collected in libraries, articles, journals and many other reports.

3.5 Techniques of Analysis 

3.6 Limitations of the Study

Only national and international legal practices will be related. Actually, study is a continuous process. It’s a very wide process which never comes to an end. It will fully be based on explanations of various legal practices against child labor and in favor of child rights. While making any kind of study, we should have to pre-declare how wider the boundary will be and what does the study stress on. While declaring the limitations for the study, we should keep in mind that which method helps us in achieving the sought information and shows the right path for that. In this Internship, more and more information will be collected in a limited period of time with regard to the articles and papers written by multiple writers and provisions made by the companies in other countries. Considering the limitation of time, this study is aimed to be completed within a months.

CHAPTER IV

RESULTS AND FINDINGS

4.1 Presentation of data and their analysis

4.1.1 Government Efforts for Child Rights

Nepal has already shown its commitment towards the protection of child rights accepting the UN Convention on Child Rights in 1990. In comparison to the past, many positive efforts have been made in this sector. Immediately after GON accepted and passed it, various provisions were made in internal law perceiving the need of separate legal protection of child rights.

Provisions of the Children Act 2048.

Part 2 of Children Act has mentioned the following provisions for the children’s rights.

·        Provision of naming and recording dates of their birth.

·        Facilities of proper care with nutrition, education, health, games and sports should be given

·        No discrimination should be made based on gender

·        No discrimination between own child and adopted ones, if any

·        No cruel and torturing behavior should be done

·        Children should be allowed to meet their divorced parents

·        Child, if adopted by others, can be in touch with their parents

·        Mother’s name can be mentioned if that one of the father is unknown

·        Children should not be enforced in begging works

·        Cruel punishments is restricted for a child

After the acceptance of child rights convention, a new act came into existence in 2048 a combined form of all scattered legal provisions and inclusive of new ones as well.

Provisions made by the Interim Constitution of Nepal 2063

The Interim Constitution of Nepal has made the following provisions for child rights in its article 22 of part 3.

·        Every child has right to their own name and identity

·        They have the right to get fundamental health facilities along with social securities

·        Physical, mental and any other kind of torture is highly prohibited and if any of them are done so, they deserve the right to get equitable compensation for that.

·        Disabled,  orphans, mentally weak children, victimized by the war have right to get special services from the nation for their bright future.

·        No children can be used in any sort of illegal and risk bearing activities, arms, wars, and factories.

Provisions in Child Rights Convention 1989.

The Child Right Convention of UN puts high emphasis on protection and development of children. It states that every child has the right to love and understanding, to food, housing, medical care, education and play facilities so that they can grow and develop in a healthy way. It puts higher emphasis on the fact that they should be free from abuse, and family, society, all INGOs, and NGOs as well as nation must contribute to protect child rights.

Regarding the protection of children, the major duties of a nation are included in the article 8 of the convention. Article 16 contains the privacy of family and an individual. Similarly, article 19 stresses on the protection against exploitation and exclusion. Article 20 has provision related to the protection of children without homes and the families. In the same way, article 34 says that children have the right to be prohibited from any kind of sexual harassments and abuses.

Likewise, the article no. 35 of the convention states that no children should be purchased and sold with the aim of enforcing them in any kind of labor. And it also states that it is the responsibility of the government to try to suppress the trafficking and kidnapping of children.

Article 36 of the convention states that children are kind hearted with critical visions and they lack the ability to think and understand an idea. Torture, cruel behaviors, punishments and life imprisonment is prohibited by the convention. They should be kept away from the adult prisoners and they need to be in touch with their family members and also they can have legal and any other sorts of help and support.

National Council of Children and Women.

With the aim of protecting children’s and women’s rights in the national level from political aspect, National Council of Children and Women was established in 2051 in the leadership of the then Prime Minister of Nepal.

Establishment of Central Children Committee.

Though there is the legal provision of diversification of Child Committees in every district, this act has not been successful easily. This committee was established in 2052BS with the objective of carrying out child welfare activities as recommended by the Children’s Act 2048.

Child Judiciary

The history of the child workers shows that a special kind of judiciary has been established and special procedures have been followed for the protection of the rights of the children. The history of such special child judiciary started in the 19^th century soon after the evolution of humanly thoughts. Various child judiciaries has been established considering the importance of special case for a child as well as the necessity of education, discipline, physical and mental development due to the lack of their ability and capacity to think and understand.

Keeping in mind the ongoing physical and mental development of a child, different countries are providing different special and unique type of actions in the judicial issues. The Constitution of kingdom of Nepal 2047 also included special kind of laws for the protection and development of children. Similarly, some provisions are also made under the different headings in Muluki Ain to protect the children. Children’s Act 2048 states a provision of establishment of a child court and processing of their cases as per the necessity. While carrying out the procession of a child in any district court, child psychologists, social workers, child specialists need to be there in addition to the judge of the district court. Everything can’t be perfect in that act but the cases related to children can be discussed on the basis of short working procedures. They are as follows:

·        One can case in favor of a child

·        Cases may be appealable

·        Primary focus should be given in the processing the cases

·        Lawyers, parents, guardians, can participate in child related cases

·        Prohibition to enforce in labor

·        Child not to be involved in immoral activities.

·        No cruel and intense  punishment can be given

·        Not to be counted in frequent criminals

Child Justice Regulatory 2063.

To formulate the objectives of Children Act 2048, Nepal Government had used the “Right to Make Rules’ mentioned in point 58 of it and prepared the following rules.

·        A separate unit or a police officer should be appointed

·        Provisions of enquiry

·        Provisions regarding establishment of child judiciary

·        Provisions of qualification, selection and removal of social workers, child specialists or a child psychologist

·        Utilization of rights

·        Execution of the cases

·        Submission and acceptance of the evidence

·        Age specification of a child

·        Decision and its implementation

·        Provisions regarding submission of the copies of the decision to different bodies.

Terms, conditions and procedures to be followed by an foreigner to adopt a Nepalese Child – 2065

Government of Nepal can accept the proposal of a foreign citizen to adopt a Nepalese child considering the moral character and financial status of that person and with recommendation of the government or embassy of the related country in case if they agree the terms and conditions presented by the government of Nepal. This provision is included in the Muluki Ain of the Country. GON has presented the following terms and conditions for that:

The children in the given conditions can be adopted:

·        By the guardian in case of a child having no any properties and living under the guardianship of someone else according to the Children Act 2048

·        By mother in case of a child whose father is dead and if mothers are married somewhere else

·        By related parents in case of children having very poor parents who have given birth to more than one child and if anyone has used permanent method of family planning

·        By mother in case if father is dead or mentally sick and if the mother is unable to raise up the child and vice versa.

·        Children found by the police or the other people

·        Orphans or the parentless children.

For above mentioned children, foreign citizens need to fulfill and accept the given terms and conditions to adopt a Nepalese child.

·        Unmarried, widowed or a divorced woman (after completion of four years of marriage) above thirty-five and below fifty-five years of age. 

·        Apply in the embassy or authorized agency of the related country in Nepal and need to take permission from that

·        Birth registration certificate of the applicant

·        Marriage certificate

·        Family details along with the birth registration certificate of their children, if any

·        Medical report of the applicant

·        Character certificate

·        Documents to prove property and the source of income

·        Photocopy of the passport of the applicant

·        Certificate of acceptance by the home country for international adoption

·        Other necessary documents, if any

Child Marriage and it’s Legal provisions in Nepal

Any marital relationship without the completion of the age of marriage as specified by the law of the country is regarded as child marriage. Children below the age of 18 lack the development of their overall organs of the body. Marriage before this age can have various physical and mental negative impacts on her/him. Thus, national and international laws have highly restricted such marriages.

·        The constitution of Nepal also regards child marriage as a social crime. Following provisions are made in Muluki Ain regarding the marriage.

·        Anyone can get married without the consent of their parents and guardians after the completion of the age of 20.

Parental consensus is needed for marriage before the age of 18 but marriage can’t be held before the age of 18. Following punishments can be given if anyone moves behind the above mentioned rules:

·        One who gets the children below 10 married can have 3 years jail and 10,000 fine.

·        Marriage of a child below 13 can have jail from 3 months to 1 year and fine of Rs. 5,000.

·        People involved in such marriage like parents, guardians, priests and others can have one month jail and fine of Rs. 1,000.

·        One who decides a marriage before the completion mentioned age has to bear fine upto Rs. 500 and such decisions will be dismissed.

·        If one is not capable of paying above mentioned fines, s/he needs to remain 3 months more in the jail.

·        If a boy or a girl is below 18, they can dismiss that relationship after the completion of 18yeras.

4.1.2 Areas of Child Labor Exploitation in Nepal

Majority of children works especially in the sectors related to agriculture. Nepal is a land locked country. It’s a developing country based on agriculture. Due to this, there is wide poverty and financial inequality as well as financial exploitation.

Because of the weak financial condition of their parents, small children are enforced to hamper their education and health despite getting love and care from them. Those children get involved in labor from the very beginning of their childhood. On one hand, these children are facing financial exploitation and on the other hand, they are being involved in evil cultures and traditions.  Children from the rural areas are sent to the urban areas to earn for their living. People can employ children in work in low costs and they can’t raise their voice against such exploitations as well. So, children are being the source of labor. If we peep into the present condition of child labor, their involvement is seen mainly in the following regions.

A. Hotel and Restaurant:

Children are employed in big and small hotels in the task of washing dishes and cleaning purposes and to serve the clients thereon. Similarly, girls are employed even for sexual purposes.

B. Factories, Industries and Construction Works:

Children are employed in industries and factories like, garments, bakeries, confectioneries, cigarette factories, printing press and brick industries as labors. Similarly, they are also employed in construction works of roads, canals, industrial buildings, residential buildings, etc. and so on.

C. Agriculture:

Children are abused in agriculture for labor and for taking care of the fields and cattle.

D. Means of Transportation and Garages:

Especially, children are working in taxi, tempo, micro bus, mini bus and garages as wagw based helpers.

E. Tea Estates:

They are used to collect the tea leaves.

F. Criminal Activities

For smuggling of drugs, weapons, robbery and theft.

G. Household Works:

To help elders in household works, to look after the children, to work in others’ fields and to work in others’ houses.

H. Others

Girl children are trafficked and also used as sweepers and cleaners on the road and in mines as labors.

The major problems being faced by the child labors as follows:

·        Negative impacts on health due to polluted work environment and risky situation.

·        Physical and mental tortures from the employers

·        No job securities and lack of health facilities and services

·        Obstacle in physical and mental development due to more pressure of work even more than their capacity

·        Involvement in bad companies due to lack of good culture and involvement in immoral activities

·        Maximum chances for dark future due to involvement in physical and mental labor in small age.

Various study and investigation in the field of children show that child labor are highly affected by it and they are back warded from their right to get quality education. Children working on various above mentioned fields fall under this. A study report shows that about 37% of such children are lacking basic education.

The condition of street children is very miserable in our country. The number of street girl child is comparatively less in comparison to the boys. Kathmandu city is found to be the major place for such child. Similarly, Pokhara, Biratnagar, Birgunj,, Nepalgunj and Dharan are also the major spots for such children. Investigations show that the major causes for increment of street children are the concept of the society towards the city, irresponsible parents towards their children etc. CWIN’s study report states that the rehabilitation of street children is very difficult task.

If we talk about the labor exploitation of our country, we can see three levels of it based on its nature and condition.

·        Child Labor in the Process of Socialization

·        Child Labor in the Condition of Progress and

·        Child Labor in Risky Situation

Child Labor in the Process of Socialization is mainly based on the area of agriculture. The children involved in the household works are not found to be totally back warded from the facility of education and health. Children’s involvement in the works like helping parents in the field, carrying water and, looking after cattle, collecting grasses and firewood from the forest, kitchen work, washing clothes, looking after the kids is not so awful.

Reformative child labor is somehow different from the discussed above. Although this type of child labor is deprived from the heath and education facilities, they are not in risky condition outside the society. This type of labor is used to take the wages for their toil and the children involved in this type of activities come back at evening completing their duties at agriculture, house and general type of work related to grocery.

The children who are in risky situation are far from the family and society and they are deprived of basic facilities like health, education, family care, entertainment etc. and they are disturbed to develop their physical condition and mentality in a proper way. This type of labor incorporates the children who are in street, children involved in different industries, vehicles, motor garage, mine, hotel and restaurant and the girls involved in the prostitution.

4.1.3 Provisions of child rights in Nepal

Child Act 2048 preserving the different rights of the children has provided the legal provisions of child sake and conservation. The government itself should conserve the children who are in a difficult situation and are deprived of societal facilities. The formation of child welfare committee in the district level, child-welfare home, child reform centre for the children involved in the child crime and drug addicted children, establishment of orphanage for the handicapped, orphan and parentless child are also the provisions mentioned in this act. Similarly for the solution for the children's legal problems and questions the policy for the establishment of child court has also been mentioned in the act.  This act is some how considered to be weak to control the child labor. In this act there is the management of severe punishment to those who make the children involve in the transportation of drugs alcoholic things and involve the children in immoral act. In nutshell, it can be said that Child Act 2048 has done a lot for the sake of children but has failed in implementation aspect.

When we see the history of the legal provisions to conserve and preserve the child rights, we can talk about the first written laws propounded by Janga Bahadur Rana, Muluki Ein of 1910 and others of different span of time. After the restoration of democracy, the constitution of 2047 has made constitutional provisions to control and eliminate the child labor. The state has been determined for providing the free education to the children as mentioned in the article 26(8) of the constitution. The child Act 2048 came into existence with an aim to preserve all the child rights and has made extremely important legal provisions for child conservation, control of child labor and on behalf of child sake.

4.1.4 Role of NGOs for the conservation of child rights

Nepal is a landlocked country. Although our country is supposed to be the richest country in terms of water resources and natural resources, other sectors have not been developed up to now. Due to poverty and the lack of education, the child's right has not been flourished. This type of country lacks government resource to preserve the child rights. Keeping this reality in the mind different NGOs have been launching their programs for the children for decades. Among them…

·        BAL MAJDOOR SAROKAR KENDRA 1999 A. D. for the rescue of the children.

·        CHELIBETI UDDAR SAROKAR KENDRA OF MAITI NEPAL

·        Child Development Society

·        Nepal Children's Organization

·        Human rights conservation forum

·        Nepal Human Rights Association

·        ANAUPACHARIC CHHETRA SEWA KENDRA

·        YATANA PIDIT SAROKAR KENDRA

·        UNICEF Nepal

·        ILO

·        Save the children

These above mentioned organizations have done following activities to preserve the child rights in the society.

·        Publishing and distribution of video, audio, drama and photos to eradicate the child labor.

·        Different research works regarding the child labor.

·        Researched based publication regarding the child labor and child rights.

·        Awareness programs through radio, television and newspapers to eliminate child labor and preserve the child rights.

·        Distribution of nutrient food items, injections and medicine to the children.

·        Management of risky children for their rescue, health, education and entertainment.

·        Short term plan for conservation of child rights and eradication of child labor.

Progress of child rights up to now in Nepal

In the recent years Nepal government and other concerned bodies have done a lot of attempts regarding the conservation of the child rights. They are:

A.   RAGMARG Nepal has rescued the children from carpet factory in valley and rehabilitated them.

B.   Concern Nepal related to children is rehabilitating the  porter children rescuing from different parts of the valley

C.   BAL MAJDOOR SAROKAR KENDRA is rescuing and rehabilitating the children who are working as tempo khalasi, the street children and children working in the factories.

D.   MAITI NEPAL has rescued many girls from trafficking and rehabilitated them. With the establishment of MAITI NEPAL, the number of girls have been controlled to be sold

E.    Different NGOs have played a great role to institutionalize the child rights and to make them aware of their own rights. For this, Child Development Society, Concern Nepal, ANAUPACHARIK CHHETRA SEWA KENDRA along with others have played the significant role.

4.2 Findings     

After close exploration of CRC, Interim Constitution of Nepal 2063, Child Act and regulation 2048 and child justice regulatory 2063 some major research findings are outlined below:

·        The UN Convention on the Rights of the Child 1989 is a major departure in this regard. The CRC is the first legally binding international instrument to incorporate the full range of human rights of children including civil, cultural, economic, political and social rights.

·        The Convention protects children's rights by setting standards in health care; education; and legal, civil and social services. Furthermore, the CRC imposes the obligation to every the member states to develop and undertake all actions (legal and administration) and policies in the light of the best interests of the child.

·        Interim Constitution of Nepal 2063 has recognized some basic human rights, which are equally applicable to children. Such as right to nationality, right to non-discrimination and non-exploitation;  right to life and liberty, right to culture and development. The Directive Principles of the Constitution has also recognized the principle of best interest of the child

·        As the Children's Act 2048 is the landmark departure in the child right law in Nepal, it has recognized the fundamental principles and provisions of CRC. The Act not only spells out the rights of the child but also outlines the implementation policies. However, the Children's Act 2048 has incorporated the rights of child to survival, development, protection and participation; there are few shortcoming of this Act where some of child rights have not been expressly stated. At the same time, some of the rights seem to have been less emphasized. Such shortcomings are described in following paragraph.

o   The Children's Act 2048 defines a 'child' as every human being below age of sixteen years where as the CRC defines a 'child' as a person aged below eighteen. Hence, inconsistency is quite apparent.

o   The child's right to survival and development has not been explicitly expressed. However, the child's right to education and parental and governmental obligations are recognized; it has not been well stressed, which is essential for the betterment of every child.

o   In the Act no provision appears about child's right to protection from illicit transfer and illegal adoption, however some respective provisions are incorporated in other laws/acts. The Act does not hold any provision about children's right to protection from armed conflict either.

o   The child's right to freedom of expression and though, conscience; right to freedom of association and peaceful assembly; and right to information has not been given priority and has not any explicit provision in this regard.

o   The Act only recognizes some basic framework of juvenile justice system but details are lacking (e.g. the process of investigation, prosecution, trail etc.).

·        Although Nepal has ratified CRC, and its two optional protocols, effective legislations and policies have not yet been made to comply with the optional protocols.

·        However, Nepal does not have separate Juvenile Justice Act as well as Juvenile Court, the role of Supreme Court has proved to be landmark and epoch making.

CHAPTER V

DISCUSSION AND CONCLUSION

5.1 Discussion

Today not only in Nepal but also all over the world there is interference and exploitation in child right and child labor. It is the subject of tension at global level about the problem created by exploiting children physically and mentally. There are two reasons of child labor exploitation: poverty and the lack of proper education.

Nepal is a landlocked country. It is the poor state filled with rural areas; 60 percent area is covered by the rural area. When we see the globe of the world, there is serious problem of child labor in the developing countries where agriculture/farming has been supposed to be the main profession of the people. Innumerable numbers of the children seem to be involved in child labor in the 14 percent town areas. In our country most of the children wander into the town areas from the rural places with an aim to have golden future due to the economic problem, ignorant parents. They are compelled to do risky works at the time of staying in the affectionate lap of their mother at home. Further they get regular torture from their employers. They get low wages and they have less nutrient food items in the polluted environment. Sometimes they may lose their lives in the risky works or may be the victims of different diseases which may not be curable.

To prevent such problems many awareness programmes and the national and foreign money have been spent but there is no realization of any relief ; the problem seems the same. The money is being misused by the so called upper class people and they are passing their luxurious lives with the help of this sort of money. The money is not used to the targeted group, instead it is being misused in the name of providing rights to the children.

To help the children to live healthy and balanced life and to save them from mental and physical exploitation have been clearly mentioned in the Nepal Interim Constitution 2007. Hence up to the Interim constitution of 2063 there are lots efforts regarding the child conservation as legal regulations. Especially Child Labor Act 2056 has made lots of legal provisions for the sake of the children. These types of acts or regulations have contributed a lot for the conservation of the child rights and control of the child labor. However, some of the provisions seem erroneous, impractical and ambitious and the provisions mentioned in the law have not been implemented properly by the concerned authorities due to there carelessness and indifference.

In Child Act 2048, Article 4 ( in sub articles 1,2,3,4) discusses about the basic health facilities of  the children, pregnant women on which it has also been mentioned that the government and the concerned authorities should be responsible but their role does not seem obligatory but optional. It would be better if the government was fully responsible to provide the facility of injection and basic health services to the children from legal point of view but such compulsions are not seen in the act by which the government has been irresponsive to forward their activities in this field.

Likewise, the child court although emerged along with the implementation of the child act 2061 does not seem so responsible to do its job. Similarly, different ambitious plans came into different legal papers but they are limited in words only. Child Labor Act 2056 has made a legal provision that the labor office has the duty to send their officials to take the information about the condition of the children from the different companies and factories but it has also remained limited only in words.

5.2 Conclusion and Implications

In response to the major research findings, here are some recommendations, which is help to fulfill both the necessary and sufficient conditions:

·        As efforts, many provisions have been made in the different laws of different times regarding the child rights conservation and the control of child labor but they are not implemented according to their spirit, they should be put into effect in a proper manner.

·        Local aids and foreign aids have been corrupted by so-called higher class people in the name of preservation of the children. The money the government other related NGOs/INGOs allot should be used for the sake of targeted group.

·        Strong monitoring policy has to be formed by the government side to consolidate the program.

·        Some of the laws have to be reformed as per the socio-economic and political condition of the country so that they can be easy to implement in our contexts.

·        The research and investigation activity has to be developed and forwarded so as to take the real information about the exact condition of the children, if so implementation aspect becomes easier.

·        Regarding the right to non-discrimination, however it is assured by the Constitution as well as the Children’s Act, there are so many other laws where the rights of daughter is not recognized in respect to the rights of the son. Although the role of Supreme Court of Nepal is praise worthy. The Supreme Court has been issuing orders to government to make the amendment of the existing law and apply the principle of non-discrimination; it is suggested to make amendments where there is discrimination between son(s) and daughter(s).

And lastly, as my whole thesis is about "A study of Child Rights in Nepal", I still want to conclude, there is miserable condition of children in Nepal. Child rights education is another major real problem. On one hand, there is discrimination between son and daughter and there is discrimination in urban and rural education system. Beyond this there is many provision related to child rights have been made but lack of mechanism the provisions are not fully implemented. Therefore, it is highly required and most essential to strict implementation for a better justice.

References

Books.

Sharma, Wagle Lokendra. Children Laws and Justice

Amnesty International Nepal. Preservation of the child rights of south Asia, 1998

Human rights 1999

Constitution/Laws

Nepal Interim Constitution 2063

Child Act and regulations 2048

          Child Justice Regulatory 2063.

Terms, conditions and procedures to be followed by a foreigner to adopt a Nepalese Child – 2065

Child Rights Convention 1989