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Published : August 20, 2010 | Author : deepti.g
Category : Juvenile Laws | Total Views : 80161 | Rating :

Deepti Susan George.NUALS

Children rights under the constitution

Children on account of their tender age and immature mind need special care and protection. They have certain special rights and legal entitlements that are being acknowledged nationally and internationally. The constitution of India recognized the rights of children for the first time and included several articles dealing with their liberty, livelihood, and development of childhood, non-discrimination in educational spheres, compulsory and free education and prohibition of their employment in factories, mines and hazardous industries. Socially and physically children are the weakest element of the society. They are not responsible for many of the cases and do not deserve to suffer. They have no say in any of the matters of evils like war or external debt. It has been rightly stated in the 1924 declaration of rights of the child (declaration of Geneva) that has now been used for all child causes “mankind owes to the chills the best it has to give”. Children are the future. By investing in them societies will have a bright future?

Right to education
Article 21-A of the constitution states that “right to education-the state shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the state may, by law determine.”

The Supreme Court in its liberal interpretation of life and liberty as under Article 21 held that the term liberty not only includes liberty but also includes livelihood but also the right of human beings to live with dignity and that also includes the right to education, and therefore, right to education is a fundamental right under the constitution. The case of Mohini Jain case came to be fortified by the supreme courts subsequent constitution bench of Unnikrishnan’s case, which held that right to education can be restricted to primary educational level and not to higher secondary level.

Article 45 Provision for early childhood care and education to children below the age of six years-

The State shall endeavor to provide early childhood care and education for all children until they complete the age of six years.

This article has been substituted by the Constitution (eighty-sixth amendment) act, 2002 which received assent of the President on Dec. 12 2002. By this amendment a new Article 21-A providing for right to education has also been inserted. This is in keeping with the hope expressed in the Supreme Court in Unnikrishnan[1] and Mohini Jain[2] that conversion of the State’s obligation under Article 45 into a fundamental right would help achieve the goal at a faster speed. This is now also a fundamental duty of parents and guardians to educate such children as provided in clause (k) of Article 51-A.

Article 45 states the “provision for free and compulsory education for children- the State shall endeavor to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of fourteen years”. However this goal has not been achieved even after fifty years of the commencement of the Constitution. It was held that there was nothing to prevent the State from discharging that solemn obligation through the government and aided the schools, and Article 45 does not require the obligation to be discharged at the expense of minority communities.[3]
It was held in the case of Mohini Jain v. state of Karnataka and others, AIR1992 SC 1858

The directive principles which are fundamental in the governance of the country cannot be isolated from the fundamental rights guaranteed under part III. These principles, have to be read into the fundamental rights. Both are supplementary to each other. The state is under the constitutional mandate to create conditions in which the fundamental rights guaranteed to the individuals under part III could be enjoyed by all. Without making “right to education” under Art.41 of the constitution a reality the fundamental rights under Chapter III shall remain beyond the reach of large majority which is illiterate.

Right to life” is the compendious expression for all those rights which the courts must enforce because they are basic to the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life.

Unnikrishnan, J.P and other v. State of Andhra Pradesh and others AIR 1993 S.C. 2178
“The first question is whether the right to life guaranteed by Article 21 does not take in the right to or not. It is then that the second question arises whether the State is taking away the right as at present does not mean that right to education is not included in right to life. The content of right of life is not to be determined on the basis of existence or absence of threat of deprivation.

The right to education further means that a citizen has a right to call upon the State to provide educational facilities to him within the limits of its economic capacity and development. By saying so it does not mean the transferring Article 41 from Part IV to Part III. The judges stated that they were merely relying upon Article 41 to illustrate the content of the right to education with the right to life. The judges further stated that it is improper to believe that the State would not provide education to its people even within the limits of its economic capacity and development. Thus the court in the case of Unnikrishnan overruled the judgment of Mohini Jain on the basis that right to education covers only the primary level education and not the secondary level.

Rights against exploitation
Article 23 states that “prohibition of traffic in human beings and forced labour.-

(1)Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2)Nothing in this Article shall prevent the state from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

Traffic in human beings means to deal in men and women like goods, such as or to sell or let or otherwise dispose them of. It would include traffic in women and children for immoral or other purposes[4]. The immoral traffic (prevention) Act, 1956 is a law made by parliament under Article 35 of the constitution for the purpose of punishing acts which result in traffic in human beings.

In pursuance of Article 23 the bonded labour system has also been abolished and declared illegal by the bonded labour system (abolition) act, 1976. To ask a person to work against his will and not provide him remuneration can be a breach under Article 23 of the Constitution. In no circumstances can a man be required to work against is will[5].

The Indian penal code and the criminal procedure code have separate provisions prohibiting traffic in human beings. According to the penal code, selling, letting for hire or otherwise disposing of, or buying, or hiring or otherwise obtaining possession of any girl under the age of 18 years for the purpose of prostitution or for any unlawful or immoral purposes is also an offence. In 1958, by a central enactment organized prostitution as a profession has been abolished all over the country and the running of brothels has been made an offence.[6]

Article 24-“prohibition of employment of children in factories,etc- No child below the age of fourteen years shall be employed to work in any factory or mine or be engaged in any hazardous employment”

The court in M.C.Mehta v. State of T.N[7] noted that menace of child labour was widespread. Therefore, it issued wide ranging directions in the context of employment and exploitation of children in Sivakasi prohibiting employment of children below the age of 14 and making arrangements for their education by creating a fund and providing employment to the parents or abled bodied adults in the family. These directions were reiterated in Bandhua Mukti Morcha v. Union of India,[8] concerning the employment of children in carpet weaving industry in India. The apex court took note of the sociological angle and possible resistance from parents and society to the total elimination of child labour and in fact, allowed the continuance of child labour in the case of Salal hydro project v. state of J&K. That is why Article 24 limits the prohibition to only factories, mines and other hazardous employment. The court had clearly lost an opportunity of interpreting Article 24 as a charter for total elimination of child labour, and making it compulsory for children to be found in school upto primary. But even after 10 years after the child labour( prohibition and abolition acts, 1986, the act once again continues permitting child labour where it is not prohibited. The apex court are not however willing to reconsider its decision and continued to give sops to employers so that in some way or the other child labour is permitted even in industries which are hazardous to the health of the children. In the case of M.C.Mehta, justice M.M.Punchi expressed his thoughts on child labour. He stated that “I see in this scheme (child labour) varied kind of benefits accruing depending upon the social strata in which such schemes are introduced. It would be an ideal transition to adulthood; it will provide a sence of responsibility and instill confidence and pride in the work of the child; very importedly the child will understand the concept of dignity and labour, it will be an extremely constructive use of time by the child, and it will also be a welcome source of income in the family….”. The judge was also quoted saying that the elimination of child labour altogether would be harsh…

Child labour:
Articles 23 and 24 of the constitutions determine the term “child labour”.

The Child Labour (Prohibition and Regulation) Act, 1986
This act was enacted on 23rd December 1986 by the parliament and was enforced on 26th may 1993 by the central government. The act was ineffective for over 8 years due to the inactiveness of the state and central government. The object of the act is

(i) ban on the employment of children i.e., those who haven’t completed their fourteenth year, in specified occupations;

(ii) lay down a procedure to decide modifications to the schedule of banned occupation and processes;

(iii) regulate the conditions of work of children in employment where they are not prohibited from working;

(iv) lay down enhanced penalties for employment of children in violation of the provisions of this act, and other acts which forbid the employment of the children;

(v) to obtain uniformity in the definition of “child” in the related laws

The intention of this act was to ban the engagements of child labour in certain employments and to regulate in areas where it has not been prohibited. It provides power to the government to make rules with reference to health and safety wherever the employments of children are permitted. Night work for children is prohibited. The hours of work for the children are also to be considered by the state and the central governments.

The act enables the governments to appoint inspectors to enforce the provisions of the act and it has also provided stringent penalties including imprisonment for violations of the provisions of the act.

Any occupation which may be connected with transport of passengers, goods and mails, cinder packing, construction of railways, selling of fire crackers etc….may be included as child labour activities. Process may include bidi-making, carpet weaving, cement manufacture, cloth printing, weaving, dyeing, manufacture of matches, explosives etc.. will fall under the category of child labour.

Position in the United States
The bill of rights did no provide any remedy to prohibit child labour. So the congress had to resort to various methods as prohibition of inter-state commerce in the products of child labour and the child labour tax law, 1919. But the United States Supreme Court, by a narrow majority struck down both laws as unconstitutional on the ground that they transcended the authority of the congress over commerce and interfered with the authority of the states. It took 15 years for the court to reverse itself and uphold congressional legislation designed to eradicate the evil of child labour and which was passed under the new deal regime of President Roosevelt.[9]

Juvenile justice act
Juvenile delinquents have been looked upon differently by persons. To a lawyer, they are minors who are accused of offences from which they are immune to the punishments that are usually administered to adults. To psychologists they are youngsters whose social behavior patterns show deviations from acceptable norms.judges take a different view by stating that they are neglected children who have been brought into the world by parents who have turned their back on their offsprings and let them shift for themselves[10]. Juvenile delinquency is indeed a social problem. Economic insecurity, under nourishment, inadequate clothing and lack of necessary medi care may lead to delinquency. The state has to give these children better care and make them good citizens. The government is doing its best to contain the problem of juvenile delinquency. In India the first legislation concerning children was enacted in 1850 when the apprentices act was passed. The act provided that the father or guardian could bind the child between the ages of 10 and 18 years. Magistrates were authorized to be the guardian of each destitute child.

The criminal procedure code, 1973 contained some provisions dealing with juvenile delinquency. Section 27 of the code reads

“any offence not punishable with death or imprisonment for life, committed by any person who at the date when he appears or is bought before the court is under the age of sixteen years, may be tried by the court of a chief judicial magistrate, or by any court specially powered under the children act 1960 or any other law for the time being in force providing for the treatment, training and rehabilitation of youthful offenders”.

Thus the state has the duty of according proper care and protection to children at all times, as it is on their physical and mental well being that the future of the nation depends

A child produced before the court charged with bailable or non bailable offence, be released on bail with or without sureties. The court shall not release him, if the release is likely to bring him into association with any ill-reputed criminal or may expose him to moral danger. Such a child must be committed to a remand home. The officer in charge should inform the pants or the guardian to be present when the child is produced before the juvenile court. The officer in charge should also inform the probation officer.

Aims of juvenile justice
The juvenile justice system shall emphasize the well being of the juvenile offender must be in proportion to the circumstances of both the offender and the offence. There are two major objectives of juvenile justice. They are

1. the well being of the juvenile

2. ‘the principle of proportionality’, which is intended to curb ‘ punitive sanctions expressed in just deserts in relation to the gravity of the offence’, and to ensure that the response to the younger offender be based on the consideration not only of the gravity of the offence but also of the personal circumstances’.

3. while the reaction must aim to ensure the welfare of the young offender, it must no go beyond necessity and, therefore infringe upon the rights of a young individual

Legal investigation and prosecution
The Beijing rules of 10(initial contact), 11(diversion), 12(special police units) and 13( detention pending trials) address themselves to the fair and humane approach that must be shown, and the procedures that must be scrupulously followed by the police upon the apprehension of the juvenile, and the care humanness, firmness and solicitude for welfare that must be consciously bestowed by the personnel on his admission into the juvenile detention centre.

Initial contact-upon the apprehension of the juvenile the parents must be immediately notified of such apprehension. The initial contact between the juvenile and the police and the other agents of the juvenile homes must respect the well being of the juvenile and must not harm him or her.

The rights of a delinquent child
There is to be a sharp and basic focus on the procedural safeguards that guarantee a fair and just trial of every juvenile before a competent authority. Basic procedural safeguards such as the presumption of innocence, the right to be notified of the charges, the right to remain silent, the right to council. The right to the presence of parents, etc.. shall be guaranteed at all stages.

The principle of non age
A juvenile of below a particular age is not responsible for any criminal act commited by him because of his emotional, mental and intellectual immaturity and sufficient incapacity to distinguish between right and wrong.

International efforts to prevent delinquency may be traced to the year 1924. It was in that year the “Geneva declaration of the rights of the child was adopted by the league of nations. The United Nations elaborately deals with the rights of the child. There are 10 principles in the declaration of the rights of children. Briefly they are as follows

Principle 1: rights to every child with no distinction on the race, color, creed, language, religion, property etc…

Principle 2: the child shall enjoy special protection, shall be given opportunities and to enable him ti develop physically, mentally, morally, spiritually in a normal manner

Principle 3: the child shall be entitled from his birth to a name and a nationality

Principle 4: the child shall enjoy social security, nutrition pre-natal and post-natal care etc..

Principle 5 :the child who is physically, socially or mentally handicapped shall be given special treatment

Principle 6: the child, for a full and harmonious environment needs love and care. A child shall not be separated from his mother. Social and public authorities should give special care that has no family and those with no adequate support

Principle 7: the child is entitled to receive proper education. It shall be free and compulsory atleast in the elementary stages. The child shall be given full opportunity for play and recreation

Principle 8: the child must be the first to receive protection and relief

Principle 9: the child shall be protected from any forms of cruelty, neglect exploitation. The child shall not be admitted to employment before an appropriate minimum age, which would prejudice his health.

Principle 10 the child shall be protected from practices which may foster racial discrimination. The child shall be brought up by a spirit of tolerance, friendship, peace etc..

The international labour organization’s instruments specifically relevant to children address the subjects of age for employment; working hours and conditions for children, protection for children form various dangerous work and substances. Twenty years after the declaration of the rights of the child the UN commission on human rights circulated a polish proposal for a convention on the rights of child with the relevant text. As a result the general assembly decided to set up a working group with the human rights commission which from 1979, the international year of the child has met regularly every year for a week in order to complete the convention. After 10 years of intense work its efforts came to an end when, as it has already been remembered, on 20 november1989 and the united nations general assembly at its forty fourth session adopted the convention which is currently open for signature, ratification and accession[11].

The convention on the rights of a child must be read with international bill of human rights, composed of the 1949 universal declarations, and the 1966(date of adoption) international covenant on economic, social, and cultural rights (ICES) and international covenant on child and political rights.

Article 45 of the conventions of the right of child invites the specialized agencies, UNICEF and other UN bodies to co-operate, motu proprio or following an express invitation, with the committee.

The idea of codifying children’s rights under the constitution has been severely criticized. It is argued that the different views stemming from the cultural divergences of the drafters cause vagueness, over breadth, lack of comprehensive planning and bring about a dilution of already established rights.[12]But the aim of the convention is to set rules for the protection of minors whose application will be monitored by a UN body.

As justice Bhagwati has rightly quoted “the child is a soul with a being, a nature and capacities of its own, who must be helped to find them, to grow into the maturity, into fullness on physical and vital energy and most breadth, depth and height of its emotional, intellectual and spiritual being”[13]. Children require guidance and support. They do not know the technicalities of life. It is for citizens like us to take their hand and show them the right way. The social workers play an important role in eradicating social evils and thus they is need for stricter analysis on their qualification and professional capacity.

Although there is much legislation by the government to curb many social evils against children, the governments are not taking any enough steps to ensure that children, the future citizens of our country are protected. These are the children that would lead our country to a healthy and prosperous nation. The final affirmation on child rights is possible only if there is international cooperation and implementatition of the right to development
[1] Unni Krishnan v. state of A.P., (1993) 1 SCC 645
[2] Mohini Jain v. State of Karnataka, (!992) 3 SCC 666
[3] Kerala Education Bill, Re, 1957, AIR 1958 SC 956:1959 SCR 995
[4] Raj Bahadur v. Legal Remembrancer, AIR 1953 Cal 522
[5] Shama bai v. state of U.P., AIR 1959 All 57
[6] The suppression of traffic in women and girls act, 1958 came into effect from 1st may 1958. the act was challenged as unconstitutional on the ground that the provisions of fundamental right to carry on any trade, etc but it was of no avail.
[7] (1996) 6 SCC 756
[8] AIR 1997 SC 2218
[9] N.L.R.B. vs. Jones and Laughlin Steel Corporation 1937, 301 U.S
[10] W.G. Daniel, “juvenile delinquency” in Roucek (Ed), sociology of crime, london
[11] See A/RES/44/25 of 5 December 1989.
[12] W.H.Bennet, op. cit.,pp. 33-42
[13] Mr Justice Bhagwati, chid basic rights.op. cit. p. 5

Authors contact info - articles The  author can be reached at: deepti.g@legalserviceindia.com

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