Justice Bhagawati once 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 maturity, into fullness on physical and vital energy and most breadth, depth and height of its emotional, intellectual and spiritual being.” 

Children are the future of every nation, and the accurate measurement of a nation’s development lies in its children’s condition. The Indian Constitution is one of the few constitutions globally, with extensive provisions for protecting children’s rights. The Children’s rights are secured in PART III (Fundamental Rights) and PART IV (Directive Principles of State Policy) of the Constitution.

Article 15(4) allows the State to make special provisions for the children’s welfare and protection. Report 21 encompasses many rights, a couple of which are the right to education and the freedom against sexual assault and rape. Article 21A expressly states that every child between the ages of six and 14 has the fundamental right to free and compulsory education. Articles 23 and 24 protect children from trafficking, forced labour, and employment in hazardous works. The Directive Principles of State Policy in Articles 39, 41, 45, and 46 cast an obligation on the State to work for children’s welfare. The Fundamental Rights read, children’s, and the Directive Principles form a comprehensive structure of children’s interest rights.

THE DIRECTIVE PRINCIPLES OF STATE POLICY  AND THE CHILD RIGHTS

The Directive Principles of State Policy, which are contained in Articles 36 to 51 of the Constitution, are inspired by the Irish Constitution. The mTheution’s makers had envisaged that the fundamental rights alone would not help much in alleviating the socio-economic conditions prevailing in India and hence added the DPSP in the Constitution to realize the potential of a welfare State fully. Fundamental Rights and DPSP are meant to supplement each other[1].

The purpose of DPSP is to fix specific socio-economic goals, which can be attained by a non-violent social revolution[2]. The Indian Constitution is a transformative and revolutionary one, which has given numerous safeguards to protect the children’s rights and welfare. The Constitution, through the fundamental rights and the DPSP, guarantees several rights and protection for children.

RIGHT TO EDUCATION

Initially, the obligation of the State to educate the children as enshrined in Articles 41 and 45. The Constitution makers rightly believed that educating the children would be the most effective way to eradicate India’s social vices for centuries. Hence they inserted the obligation of the State to educate the children in the Directive Principles. However, the Directive Principles aren’t as effective as the Fundamental Rights. The DPSP has been inserted in the Constitution to give specific directions to the State as to how, in what manner, and what purpose they are to exercise its powers. 

The downside of DPSP is that they are specifically made non-enforceable by any Court of Law. Article 37 categorically states that the DPSP is non-enforceable by any Court. Still, it also says that the principles contained in the DPSP are fundamental in the governance of the country. Subsequently, many judicial decisions have established that the DPSP is to be construed in harmonium with the Fundamental Rights and the State shall not violate them.

Article 41 states that the State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, right to education and public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

Article 45 states that the State shall endeavour to provide early childhood care and education for all children until they complete the age of fourteen years. The State is required to provide free education to all children up to the age of 14 years, within 10 years from the commencement of the Constitution.

However, Article 45 proved insufficient and the Parliament in 2002[3] substituted Article 45 with Article 21A which made free and compulsory education a fundamental right under Part III of the Constitution. Apart from Articles 41, 45 and 21A, the Supreme Court has culled out Right to Education from Right to Life enshrined in Article 21. 

The Supreme Court inferred the Right to Education from Article 21 in the case of MOHINI JAIN V STATE OF KARNATAKA[4] even before it was made an exclusive fundamental right under Article 21A.

The question whether Right to Life enshrined in Article 21 includes the Right to Education arose before the Supreme Court for the first time in the case of Mohini Jain which was concerned with the collection of capitation fees by educational institutions. The Court held that,

“Even though the Constitution, as such, does not make Right to Education a fundamental right, a cumulative reading of Article 21 along with Directive Principles enshrined in Articles 41, 45, 38 and 39(a) makes it clear that the framers of the Constitution made it obligatory for the State to provide education to its citizens.”

The Court observed that the Right to Live with Dignity would be incomplete without the Right to Education as education constitutes an indispensable tool to help man live with dignity. The Court further argued that the rights under Article 19 such as the Right to Speech and Expression cannot be fully realised without the aid of education. Hence Right to Education is concomitant to Fundamental Rights and the State is bound by the Constitutional mandate to provide education to all citizens at all levels.

It is pertinent to note that in the Mohini Jain case, the Supreme Court viewed Right to Education under an absolutist lens and made a liberal and extremely expansive interpretation of Article 21 and mandated that the Constitution has put the State under an obligation to provide education to all citizens at all levels.

However, in UNNIKRISHNAN V STATE OF ANDHRA PRADESH[5] the Supreme Court reiterated that the Right to Education rightfully flows from Right to Life enshrined in Article 21. But it denounced the absolutist stance it took in Mohini Jain case. Instead, it held that,

“The State is under a Constitutional mandate to provide free and compulsory education only under up to the age of fourteen, beyond which the State’s obligation is subject to the limits of the economic capacity of the State.”

Subsequent to the Unnikrishnan case, in 2002, the Parliament inserted Article 21A which expressly guaranteed every citizen the Right to Free and Compulsory Education up to the age of fourteen. Education to children has been made compulsory by making it a fundamental duty of parents or guardians under Article 51A to provide educational opportunities to their wards.

In 2009, the Parliament enacted the Right of Children to Free and Compulsory Education Act, 2009 which guaranteed every child of age six and above the right to enrol in a neighbourhood school and get free education.

PROMOTION OF EDUCATIONAL INTERESTS IN WEAKER SECTIONS:

Article 46 obligates the State to promote with special care the educational and economic interests of the weaker sections of the people, in particular, the Scheduled Castes and Scheduled Tribes and to protect them from social injustice and all forms of exploitation.

Owing to the discrimination and subjugation faced by the lower castes and communities for centuries, most of these people were either denied the right to education or were disinterested in educating their children due to extreme poverty and social apathy. The social advancement of these communities was largely dependent on educating their children. Hence it became one of the goals of the Constitution makers to educate and uplift such suppressed and weaker section of the people. It was with this noble intention the Constitution made it an obligation for the State to take extra efforts to promote educational and economic interests in such weaker sections of the society.

In the case of SOCIETY FOR UNAIDED PRIVATE SCHOOLS OF RAJASTHAN V UNION OF INDIA[6], the question before the Court was what encompassed the meaning of ‘weaker sections’ with respect to Article 46. The Court held that the term ‘weaker sections’ doesn’t mean only Backward Class as Article 16(4) doesn’t comprise all the weaker sections of the society but only those which are socially, economically and educationally backwards. Hence the term ‘weaker sections’ in Article 46 is wider than ‘Backward Class’ given in Article 16(4).

RIGHT AGAINST EXPLOITATION OF CHILDREN

Article 23 prohibits human trafficking and forced labour. Clause 1 of Article 23 states that traffic in human beings and the beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.

Child trafficking is a big menace in India where children trafficked are either sold as bonded labours or pushed into prostitution. Children, especially those from the lower strata of the society are at a higher risk of being trafficked. ‘Traffic in human beings’, commonly known as slavery, means the buying and selling of human beings as if they are chattels[7] The Constitution of India guarantees every person the right against exploitation and has made it an offence punishable by law.

Article 24 prohibits the employment of children under the age of fourteen in any factory, mine or any other work of hazardous nature. This puts a constitutional mandate on the State to protect children under the age of 14 and prohibit their employment in any factory, mine or hazardous work, even if there is no legislation prohibiting the same. Hence, people employing under 14 children in hazardous work, thereby endangering their safety and health cannot take the defence of lack of legislation on the subject matter. The Constitution categorically prohibits any employment of children under 14 which affects their health or safety. Every child has the fundamental right not to be exploited or abused.

Article 23 and 24 are read along with the Directive Principles given in clauses (e) and (f) of Article 39 to give a wholesome view of a child’s fundamental right to not be abused or exploited. The Directive Principles given in Article 39(e) and (f) further strengthen the rights of children.

ARTICLE 39(e) AND (f):

Article 39 lists out certain principles of policy which are to be followed by the State. Article 39(e) and 39(f) specifically talk about the welfare of children. Both these clauses of Article 39 protect children from exploitation and direct the State to provide a safe and healthy environment to grow in. This is an important provision given the socio-economic conditions of India which push lakhs of children into bonded labour and exploitation, thereby curtailing their fundamental rights and endangering their health and safety.

Article 38(e) provides that the State shall direct its policy towards securing the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength.

Article 39(f) provides that the State shall direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.

One of the biggest hurdles India faces is child labour and bonded labour. While child labour is largely due to economic constraints on the family, the menace of bonded labour has medieval roots where people belonging to vulnerable castes and communities who were illiterate were exploited for generations, akin to slaves. Poverty and illiteracy are the biggest torchbearers of child and bonded labour. The condition of girl children is even worse since in most cases they are not only physically exploited but also sexually abused. In some cases, they are even at the risk of child trafficking.

Article 39 provides constitutional safeguards against child abuse and exploitation and even though the DPSP are not on par with the Fundamental Rights they have inspired a number of PILs and legislations to protect children against exploitation. The Constitutional provisions reflect the great anxiety of the Constitution makers to protect and safeguard the interests and welfare of the children of India[8].

ISSUE OF CHILD LABOUR

BANDHUA MUKTI MORCHA V UNION OF INDIA [9]

 is a landmark case in abolishing child and bonded labour.  The Supreme Court was faced with the issue of bonded labour and kidnapped children who were exploited by Uttar Pradesh’s carpet industry. The Court appointed committee shed light on the rampant practise of bonded labour in UP’s carpet industry and also revealed that many children were kidnapped from Bihar and forced into labour. The Court relied on Articles 21, 23, 41, 42 and 39 (e) and (f) and secured the release and rehabilitation of such victims. The Court observed that,

“The right to live with human dignity enshrined in Article 21 derives its life breath from the Directive Principles of State Policy and particularly clauses (e) and (f) of Article 39, Article 41 and 42 and at the least, therefore, it must include protection of the health and strength of workers, men and women, and of the tender age of children against abuse, opportunities and facilities for children to develop in a healthy manner and in conditions of freedom and dignity, educational facilities, just and humane conditions of work and maternity relief.”

PEOPLE’S UNION FOR DEMOCRATIC RIGHTS V UNION OF INDIA [10]

Popularly known as the Asiad case, is a PIL where several human rights and labour law violations in the construction industry was brought to the notice of the Supreme Court. One such issue before the Court was the employment of children below the age of 14 in the construction industry. The Supreme Court held that,

“Although the construction industry was not included in the schedule to the Employment of Children Act, 1938 and hence the prohibition under section 3(3) of the said Act did not apply to the construction industry, employment of children under the age of 14 in factories, mines and other hazardous work is in direct violation of Article 24 and also Convention No. 59 of the International Labour Organisation. This is a constitutional prohibition and even in the absence of any proper legislation, should operate propiro vigore.”

MC MEHTA V STATE OF TAMIL NADU  [11]

 popularly known as the Sivakasi Match Factory case, the Supreme Court acknowledged that the menace of child labour is spread wide across the country and the State is obligated by Articles 24, 41, 47 and 39(e) and (f) to abolish child labour and provide a safe and healthy environment for the development of children.

WELFARE OF ADOPTED CHILDREN

LAKHMIKANT PANDEY V UNION OF INDIA [12]

which is a PIL to regulate and establish guidelines for intercountry adoption, it was alleged that the Indian children adopted by foreigners were being abused and exploited as there were no proper guidelines to regulate the same. The Supreme Court stressed on the dangers of unregulated adoptions and observed that “It is obvious in a civilised society the importance of child welfare cannot be overemphasized, because the welfare of the entire community, its growth and development depend on the health and well being of its children. Children are a supremely important national asset and the future well being of the nation depends on how its children grow and develop.” The Supreme Court, in consultation with several child rights groups, laid down procedural and normative guidelines for intercountry adoptions.

WELFARE OF CHILD PROSTITUTES

VISHAL JEET V UNION OF INDIA[13]

In this case, the plight of children pushed into prostitution and sex trafficking was brought before the Supreme Court and the petitioner sought certain directions on the issue of sex trafficking of women and children and the subsequent rehabilitation of child prostitutes by State agencies. The Court emphasised on the need for a humanistic approach towards the rehabilitation of child prostitutes rather than a purely legal one. The Court relied on constitutional provisions having a bearing on the issue such as Articles 21, 23, 35(a) (ii), 39(a), (e) and (f) and issued the following directions inter alia to the state governments and Union Territories.

1.  Directly concerned law enforcing authorities to take appropriate and speedy action under the existing laws in eradicating child prostitution.

2.  Take steps in providing adequate and rehabilitative homes.

3. Set up separate Advisory Committee consisting of relevant government officials, sociologists, criminologists, members of the women/ child welfare/ voluntary social organizations to make suggestions for eradicating child prostitution and the devdasi and jogin tradition; and measures for care, protection, treatment, development and rehabilitation of victims.

GAURAV JAIN V UNION OF INDIA [14]

which emphasised on the stigma ridden fates of the children of prostitutes, the Supreme Court held that the children of prostitutes hold the same rights as any other child in the country; that they have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them. The Supreme Court set up a committee to study the issue and come up with a scheme to rehabilitate child prostitutes and the children of prostitutes and their successful integration into the Indian society.

STATE OF RAJASTHAN V OM PRAKASH [15]

the Supreme Court shed light on the sensitivity of child rape cases and their mishandling by law enforcement agencies and Courts. The Supreme Court relied on the ‘special safeguard’ provided in the Constitution under Article 39 for children to caution Courts and law enforcement agencies to handle such cases with care and sensitivity.

CONCLUSION

India is a country with rich and beautiful culture but is unfortunately polluted with certain social maladies deep-rooted in the society which still plague us today. The Constitution makers tried their best to counter these social vices by drafting an exhaustive Constitution which guarantees an array of rights for the people of India. It also has special and exclusive provisions to uplift and safeguard the rights of vulnerable sections of the society. As violence against children in India grows at an abdominal rate, the Constitution comes forward with a well-thought array of rights to protect the children. However, where the country fails its children is not in the recognition or the prompt interpretation of their rights but in the proper implementation of such rights, laws and guidelines. The mere recognition of rights on paper is not sufficient to protect children. Social awareness, coupled with sensitivity towards children’s rights and proper implementation of the laws is what that makes the children of India truly safe and their rights fully realised.

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ENDNOTES:

[1] Kesavananda Bharathi V State of Kerala, AIR 1973 SC 1461

[2] Pathumma V State of Kerala, AIR 1978 SC 771

[3] Section 3 of the Constitution (Eighty-sixth Amendment) Act, 2002

[4] AIR 1992 SC 1858

[5] AIR 1993 SC 2178

[6] AIR 2012 SC 3445(2490)

[7] Jain, M. P., Chelameswar, J., & Naidu, D. S. (2019). Indian constitutional law. Gurgaon, Haryana, India: LexisNexis.

[8] Lakshmi Kant Pandey V Union of India, AIR 1984 SC 496

[9] AIR 1984 SC 802

[10] (1982) 3 SCC 235

[11] AIR 1997 SC 699

[12] ibid

[13] AIR 1990 SC 1412

[14] AIR 1990 SC 292

[15] (2002) 5 SCC 745