Constitutional Provisions Relating To Protection And Welfare Of Children

INTRODUCTION

In the general sense, any human being who is below the age of eighteen years is considered a child. Children are considered to be the future of the country. Their development is of the utmost importance for the betterment of the country. Many fields have made remarkable progress in giving children basic rights. Children are more susceptible to exploitation and abuse and therefore are considered as a minority group or a weaker section of society who need special attention and special laws. It is the responsibility of the State to look after its children and their development.

The Constitution of India grants rights to children through various provisions. The Constitution, while being made, had included most of the provisions given for children’s rights in the UN Convention of Rights of Child, 1989 in the Fundamental Rights and Directive Principles of State Policies.

CONSTITUTIONAL PROVISIONS RELATING TO PROTECTION AND WELFARE OF CHILDREN

PART III – FUNDAMENTAL RIGHTS

1. ARTICLE 14RIGHT TO EQUALITY

The state has to ensure to every citizen, equality before the law and equal protection of the law. All citizens of India including children are entitled to a right to equality without any discrimination and arbitrariness. Children are little and can be easily exploited or ignored as they are more vulnerable. This article provides that they are treated like any other citizen before the law and are protected by the law like any other citizen.

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In the case of Gaurav Jain v. Union of India[i], the Supreme Court of India had held that it would not be in the best interest of the children to separate the children of prostitutes from other children. It stated that children of women who engage in prostitution should have the same right to equality of opportunity and to live with dignity, care and protection. They should have the right to live a normal social life without any stigma attached to it.

2. ARTICLE 15(3)RIGHTS AGAINST DISCRIMINATION

Art. 15 prohibits discrimination. Art. 15(3) states that the State can make special provisions for the welfare and benefit of women and children.

3. ARTICLE 21RIGHT TO PERSONAL LIBERTY AND DUE PROCESS OF LAW

A citizen cannot be deprived of his life and personal liberty and due process of law. A child has the right to proper food, shelter, clothing, etc. The Constitution recognizes the prime importance of the right nutrition and health to children and incorporates it within this article.

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In the case of Kishan Pattnayak v. State of Orissa[ii], the petitioner had filed a writ petition stating the situation of extreme poverty in Kalahandi, Orissa where hundreds of people including children died because of starvation. In order to get some food, people were forced to sell their children. This case highlighted the issue of lack and food and poverty and its effect on children. The Supreme Court directed the Government to take serious steps in order to reduce drought and to take measures to reduce poverty.

4. Article 21-A – RIGHT TO EDUCATION

The State ensures that free and compulsory education is to be provided to all children between the age of 6 – 14 years. In the case of Mohini Jain v. State of Karnataka, 1992[iii] and Unnikrishnan v. State of Andhra Pradesh, 1993[iv], it was contested that the right to education must be a fundamental right. Until then right to education was included as a non-enforceable right under the Directive Principles of State Policy. The Supreme Court held that the right to life includes the right to education and incorporated it as a fundamental right under Art. 21-A.

The right to free and compulsory education has been recognized as a basic human right by many international conventions. It is a means to provide basic education and set a minimum standard of education for every child.

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5. ARTICLE 23 – PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED LABOUR

Human beings cannot be trafficked or be forced into bonded labour. Child trafficking exists in our society giving way to an increase in child beggars, sexual exploitation of children, and forced labour and this article prohibit it.

In the case of Vishal Jeet v. Union of India[v], the Court issued several directions to put an end to the sexual exploitation of children. It directed to set up rehabilitation centres for children who were victims of sexual exploitation, street beggars and minor girls pushed into prostitution.

U.P. Bandhua Mukti Morcha v. Union of India[vi]– In this case, the Supreme Court of India stated that if no steps are taken under Bonded Labour System Act – 1976 by the State then it would amount to a violation of Article 23 of the Indian Constitution.

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6. ARTICLE 24 – PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES, ETC.

This article prohibits child labour. Children below the age of fourteen years cannot be employed to work in factories or mines or in any other hazardous jobs. Child labour means any work that strips a child of its childhood and harms their physical and mental well being. Therefore menial and small jobs are not prohibited. Hazardous jobs include construction work, railways, making firecrackers or matchboxes.

PART IV – DIRECTIVE PRINCIPLES OF STATE POLICIES

1. Article 39(e)

In this article, the State guarantees that the health and strength of men, women and children of tender age shall not be abused and citizens should not engage in activities that are not suited to their age or strength out of economic necessity. One such evil activity is child labour which is forced on young children by economic necessity.

2. Article 39(f)

The State shall ensure that it makes policies that would work towards securing opportunities and facilities for children that would help them to develop in a healthy manner and with freedom and dignity. It should also ensure that their childhood and youth are protected from exploitation and moral and material abandonment.

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3. Article 45

The State attempts to provide free and compulsory education for all children up to fourteen years of age, within ten years from the commencement of this Act. This provision was made to ensure that even if the child is not protected by its own parents, or has no parents, the State shall take responsibility for the development of the child and their free and compulsory education till they are fourteen years of age. But even after more than half a century has passed since the commencement of the Constitution, this goal has not yet been achieved.

In M. C. Mehta Vs State of Tamil Nadu, 1991, the Supreme Court of India stated that the provisions of Art. 45 has still remained a far cry and that all children up to the age of 14 years should be sponsored by the State to be in schools as grown-up children are forced to seek employment due to economic necessity.

4. Article 46

The State has a duty to nurture the educational and economic interests of the weaker sections of society which includes children and also to protect them from all forms of social injustices and exploitation.

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5. Article 47

The State has an obligation to improve the standard of living, the level of nutrition and public health for citizens, including children.

PART IV – A – FUNDAMENTAL DUTIES

Article 51 A(k)

It shall be the duty of every citizen, be it the parents or the guardians to provide education for the child or the ward between the age of six or fourteen years. Through this, the Constitution closely brings up that the education of the child is the duty of the parents or the guardian as the children are the future of the country.

CONSTITUTIONAL REMEDIES

In case any of the above stated fundamental rights are infringed, a person can seek constitutional remedy via Article 32 and 226 writs jurisdiction.

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  1. Article 32 – a person can move to the Supreme Court to seek remedy if any of his fundamental rights are infringed.
  2. Article 226 – a person can move to the High Court to protect his rights which need not necessarily be fundamental.

Since children cannot challenge the legal system on their own, their grievances can be pursued via a Public Interest Litigation which can be filed by a non-governmental organization or a public-spirited individual against the State Government or Central Government via Articles 32 and 226 to protect children’s rights.

CONCLUSION

Children due to their young minds are vulnerable. It is important that an environment of growth and development is made for them. All children should be given reasonable care and protection by the State. India tries to secure the rights of children, with the help of various international laws in the Constitution. But in spite of so many laws and provisions, there are still many challenges. There have been many cases where children have been denied justice. Many social evils such as child labour, the kidnapping of children, child marriage, rape of children, etc. keep happening. The implementation of these laws and their punishment should be made stricter to act as a deterrent. As children cannot be isolated from their family, the families of children should be made more aware of their rights for their protection and eventually for a better childhood.

[i] [(1997) 8 SCC 114; AIR 1997 SC 3021]

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[ii] 1989 AIR 677, 1989 SCR (1) 57

[iii] (1992) 3 SCC 666

[iv] (1993) 1 SCC 645

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[v] 1990 AIR 1412, 1990 SCR (2) 861

[vi] (AIR 1984 SC 802)

REFERENCE

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  1. https://www.india.gov.in/my-government/constitution-india/constitution-india-full-text
  2. https://www.examrace.com/Current-Affairs/NEWS-Constitutional-Provisions-of-Children-Who-is-a-Child-Hausla-2017-for-Children-Important.htm
  3. http://www.vizagsteel.com/kids/kids_cor/CHILD_WELFARE.htm

This Article is Authored by Malvika Verma, 4th Year BBA.LLB. Student at Sandip University

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