Constitutional Provisions

India is determined to achieve the goal of the Social Justice, including empowerment of
women and promotion of the rights of children. This consciousness is reflected in the
provisions enacted in the Constitution. The constitutional provisions reflect the great anxiety
of the Constitution makers to care and protection the interest and welfare of children in the
country. The Government of India has also in pursuance of these constitutional provisions
evolved a National Policy for the Welfare of Children. This Policy starts with a goal-oriented
program for development of children.

Constitutional Guarantees that are meant specifically for children include: ‘

 Right to free and compulsory elementary education for all children in the 6-14 year
age group (Article 21 A)
 Right to be protected from any hazardous employment till the age of 14 years (Article
24)
 Right to be protected from being abused and forced by economic necessity to enter
occupations unsuited to their age or strength (Article 39(e))
 Right to equal opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and guaranteed protection of childhood and youth
against exploitation and against moral and material abandonment (Article 39 (f))
 Right to early childhood care and education to all children until they complete the age
of six years (Article 45)

Besides, Children also have rights as equal citizens of India, just as any other adult male or
female:

 Right to equality (Article 14)

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

Few of the above stated constitutional rights of the children are dealt hereunder:-

1. Right to Education

The Supreme Court in the People’s Union for Democratic Rights v. Union of India, has held
that those rights which are provided in Part IV of the Constitution can be read into the
fundamental rights provided under Part III of the Constitution and in that way they can be
enforceable in courts. For example, Article 45 provides for free and compulsory education for
children until they complete the age of 14 years. However, the Supreme Court in its liberal
interpretation of life and liberty guaranteed under Article 21 held that the term liberty not
only includes livelihood but also the right of human beings to live with dignity, and such
dignity is not possible without literacy, and therefore the Right to Education is a fundamental
right coming within the meaning of Article 21A of the Constitution of India.

This revolutionary interpretation given in the Miss. Mohini Jain v. State of Karnataka and
others came to be fortified by the Supreme Court‟s subsequent Constitution bench in the
Unni krishnan, J.P. and Other v. State of Andhra Pradesh and others. Unfortunately, the
Unni krishnan case restricted the Right to Education to the primary education level and it
was held that higher education cannot be made a Fundamental Right. Article 45 providing for
universal compulsory and free education up to the age of 14 years has now become a
fundamental right with a direct bearing on the status of the child.

2. Right against Exploitation

The Supreme Court while interpreting Article 23 prohibiting forced labour struck a blow to
the system of bonded labour and pledging of Child labour. The Supreme Court also held
when interpreting that article, that non-payment of minimum wages would amount to “forced
labour” and forced labour is prohibited under by Article 23 of the Constitution. This is
another shot in the arm for those who are fighting for better service conditions for child
labour.

Article 24 prohibits employment of children below the age of 14 in any factories, mines or in
any other hazardous occupations. This article came up for consideration in Labourers
Working on Salal Hydro Project v. State of Jammu & Kashmir and others,. The Supreme
Court held that though the Employment of Children Act, 1938 did not include the
construction work on projects because the construction industry was not a process specified
in the Schedule to the Act, yet, such construction was a hazardous occupation and under
Art.24 children under 14 could not be employed in a hazardous occupation. The right of a
child against exploitation under Art.24 was enforceable even in the absence of implementing
legislation, and in a public interest proceeding. Unfortunately the court instead of seeing the
rights provided under the Constitution as a bundle of rights viewed this article in isolation.

The Supreme Court in its decision in M.C. Mehta v. State of Tamil Nadu dealt with child
labour working in Match Industries at Sivakasi (Tamil Nadu) directed that children should
not be employed in hazardous jobs in factories for manufacture of match boxes and
fireworks, and positive steps should be taken for the welfare of such children as well as for
improving the quality of their life.

It is clear that we have miles to go before total elimination of child labour becomes a
possibility, although certain judgments of the Supreme Court have been path breakers in the
choosen direction.

3. Right to Health

Article 38 of Indian Constitution impose liability on State that states will secure a social order
for the promotion of welfare of the people but without public health we cannot achieve it. It
means without public health welfare of people is impossible. Article 39(e) provides that 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 avocations unsuited to
their age or strength. Article 39(f) stated that children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and material abandonment. Article
41 imposed duty on State to public assistance basically for those who are sick and disable.
Article 42 makes provision to protect the health of infant and mother by maternity benefit.

In the India the Directive Principle of State Policy under the Article 47 considers it the
primary duty of the state to improve public health, securing of justice, human condition of
works, extension of sickness, old age, disablement and maternity benefits and also
contemplated. Further, State‟s duty includes prohibition of consumption of intoxicating
drinking and drugs are injurious to health. Article 48A ensures that State shall Endeavour to
protect and impose the pollution free environment for good health.

Article 47 makes improvement of public health a primary duty of State. Hence, the court
should enforce this duty against a defaulting authority on pain of penalty prescribe by law,
regardless of the financial resources of such authority. Under Article 47, the State shall regard
the raising of the level of nutrition and standard of living of its people and improvement of
public health as among its primary duties. None of these lofty ideals can be achieved without
controlling pollution inasmuch as our materialistic resources are limited and the claimants are
many.

4. Right to Equality

The fundamental fights are guaranteed to protect the basic human rights of all citizens of
India and are put into effect by the courts, subject to some limitations. One of such
fundamental rights is the Right to Equality. Right to Equality refers to the equality in the eyes
of law, discarding any unfairness on grounds of caste, race, religion, place of birth sex. It also
includes equality of prospects in matters of employment, abolition of untouchability and
abolition of titles. Articles 14, 15, 16, 17 and 18 of the Constitution of India highlight the
Right to Equality in detail. This fundamental right is the major foundation of all other rights
and privileges granted to Indian citizens. It is one of the chief guarantees of the Constitution
of India. Thus, it is imperative that every citizen of India has easy access to the courts to
exercise his/her Right to Equality. Article 14 states that the State shall not deny to any person
equality before the law or the equal protection of the laws within the territory of India
Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth. Article
15 deals with Prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth.-

 The State shall not discriminate against any citizen on grounds only of religion, race,
caste, sex, place of birth or any of them
 No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to (a)
access to shops, public restaurants, hotels and palaces of public entertainment; or (b)
the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public
  Nothing in this article shall prevent the State from making any special provision for
women and children.
 Nothing in this article or in clause (2) of Article 29 shall prevent the State from
making any special provision for the advancement of any socially and educationally
backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Under the Constitution the state has been given power to make laws relating to women and
children but such laws shall not be violative of Article 15 of the Constitution. Article 15(1)
prohibits gender discrimination. Article 15(3) lifts that ignominy and permits the state to
positively discriminate in favour of women and children to make special provisions to
ameliorate their social, economic and political condition and accord them parity. The Courts
have always approved the validly of such special legislation rather special measures. Article
15(3) is an exception to the rule against discrimination provides by Art. 15(1),15(2) or 14.

In Gaurav Jain v Union of India, the Supreme Court held that the children of the prostitutes
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 Court
directed for the constitution of a committee to formulate a scheme for the rehabilitation of
such children and child prostitutes and for its implementation and submission of periodical
report of its Registry.

Judicial Trends on Juvenile Justice System in India

The judiciary in India play a very important role in the development of Juvenile Justice
System in India. In the initial stage, the cases related with juvenile delinquent are dealt by the
lower courts but the trends of the judicial approach towards a juvenile in conflict with the
law, reflected by the judgments of Hon’ble Supreme Court and various high courts. The
courts/ juvenile justice board are under the statutory and Constitutional duty to deal with the
juveniles in conflict with the law.

Unni Krishnan Vs Andhra Pradesh, The Supreme Court in its judgment held that children up to the
age of 14 had a fundamental right to free education.
Neeraja Chaudhary Vs State of Madhya Pradesh (AIR 1984 SCC (3) 243) In this case the Supreme
Court of India stated that the Child Labourers should be rescued and provision for their
rehabilitation should be made. Constitutional Provisions and Legislations for Child Labour in India

U.P. Bandhua Mukti Morcha Vs Union of India (AIR 1984 SC 802) In this case the Supreme Court of
India stated that if no steps are taken under Bonded Labour System Act – 1976 by the Government
then it would be a violation of Article 23 of the Constitution. Article 23 states that children should
not be forced to work at cheap wages due to their economical or social disadvantage.

Sheela Barse Vs Secretary, Chrildren Aid Soceity and Others, 1987 The Supreme Court held, "If there
be no proper growth of children of today, the future of the country will be dark. It is the obligation of
every generation to bring up children who will be citizens of tomorrow in a proper way.

M. C. Metha Vs State of Tamil Nadu, 1991 The Supreme Court has not allowed children to
work in a prohibited occupation. According to the judges, "the provisions of Article 45 in the
Directive Principles of State Policy has still remained a far cry and according to this
provision all children up to the age of 14 years are sponsored to be in school, economic
necessity forces grown up children to seek employment. the Supreme Court pronounced upon
the constitutional perspective of the abolition of Child labor and issued appropriate guidelines
to the Government of India with respect to compulsory education, health, nutrition, etc of the
child laborers.

In Gaurav Jain v. Union of India, The Supreme Court of India, while dealing with writ
petition under Article 32 of the Constitution pertaining to the plight of the prostitutes or fallen
women and their progeny, spoke about the Preamble of the Constitution and stated that it is
an integral part of the Constitution of India and that the children have the right to equality of
opportunity, dignity, and care, protection and rehabilitation by the society with both hands
open to bring them into the mainstream of social life without pre-stigma affixed on them for
no fault of his or her.

In Laxmikant Pandey v. State, the Apex Court of India observed that every child has a right
to love and affection and of moral and material security and this is possible if the child is
brought up in a family and an inter-country adoption should be permitted after exhausting of
adoption within the country.
In Subramanian Swamy v. Raju Thr. Member, Juvenile Justice Board, Some incidence
becomes mileage stone that shook the psyche of the society or nation. One of such incidence
Delhi Gang Rape Case which held in December 2012 in running bus where, 6 persons, one of
the homes was a few months of short of 18 years, gang rape a college student of the age 23
years. Accordingly, the accused juvenile was tried in JJB was sent to a special home for a
term of three years. The Irony of the law is that even after committing the heinous crime of
rape and murder, including insertion of an iron rod into the private part of the victim, the
juvenile was set free to roam freely in the society. In the particular case Dr. Subramaniyam
Swami, a Rajya Sabha Member, Ex Law Minister and a senior lawyer of Supreme Court
moved to the Supreme Court of India requesting the court for an order prohibiting the release
the set juvenile from special home. The Supreme Court of India expressed inability to prevent
the release of the set juvenile as the existing law does not provide for do so and asked Dr.
Swami to approach the Parliament of India for necessary change in the law for enhancement
of punishment in such cases. Here, it would not be out of context to mention that set juvenile
was kept in a special home along with an accused Delhi Blast Case. Thus, one can easily
imagine the influence of the blast case accused on the sad juvenile and vice versa.

In Sheela Barse v Union of India, the Supreme Court issued directions to the state
government to set up necessary observation homes where children accused of an offense
could lodge, pending investigation and trial will be expedited by juvenile courts.
In Sakshi v Union of India, the Supreme Court directed the government/ Law commission to
conduct a study and submit a report on the means of curbing child abuse.

The Child Labour (Prohibition and Regulation) Act, 1986

The Act prohibits the employment of children below the age of 14 years in 16 occupations and 65
processes that are hazardous to the children's lives and health. These occupations and processes are
listed in the Schedule to the Act. In October 2006, the Government has included children working in
the domestic sector as well as roadside eateries and motels under the prohibited list of hazardous
occupations. More recently, in September 2008 diving as well as process involving excessive heat
(e.g. working near a furnace) and cold; mechanical fishing; food processing; beverage industry;
timber handling and loading; mechanical lumbering; warehousing; and processes involving exposure
to free silica such as slate, pencil industry, stone grinding, slate stone mining, stone quarries as well
as the agate industry were added to the list of prohibited occupations and processes;
The Factories Act, 1948
The Act prohibits the employment of children below the age of 14 years. An adolescent aged
between 15 and 18 years can be employed in a factory only if he obtains a certificate of fitness from
an authorized medical doctor. The Act also prescribes four and a half hours of work per day for
children aged between 14 and 18 years and prohibits their working during night hours.
The Mines Act, 1952
The Act prohibits the employment of children below 18 years of age in a mine. Further, it states that
apprentices above 16 may be allowed to work under proper supervision in a mine. Constitutional
Provisions and Legislations for Child Labour in India
The Minimum Wages Act, 1948
Prescribes minimum wages for all employees in all establishments or to those working at home in
certain sectors specified in the schedule of the Act. Central and State Governments can revise
minimum wages specified in the schedule. Some consider this Act as an effective instrument to
combat child labour in that it is being used in some States (such as Andhra Pradesh) as the basis on
which to prosecute employers who are employing children and paying them with lower wages.
The Right of Children to Free and Compulsory Education Act, 2009
Provides for free and compulsory education to all children aged 6 to 14 years. This legislation also
envisages that 25 per cent of seats in every private school should be allocated for children from
disadvantaged groups including differently abled children.