CONSTITUTION OF INDIA AND THE PROTECTION OF JUVENILES

“The Constitution of India is our paramount legal parchment, our national charter,
our
Fundamental law, our legal wonder with prolixity unlimited1.” The Constitution of
India
which came into effect from 26th January, 1950 introduced a revolutionary chapter
on the
rights of the child. Before its enactment, there were bits and pieces of various
legislations
which dealt with the child and child labor. The implementation of those provisions
were
not only tardy but half-hearted2. The constitution of India recognized the rights of
the child
for the first time and included several articles dealing with their liberty, livelihood,
development of childhood, non-discrimination in educational spheres, compulsory
and free
education and prohibition of their employment in factories, mines and hazardous
employment.
These articles are separately extracted and given in this compilation. They are
taken
from two parts of the Constitution, namely, Part III and Part IV. Part III of the
Constitution of
India deals with the Fundamental Rights of all citizens which are specifically
enforceable in
Courts. Article 32 provides remedy to file Writs before the Supreme Court for
enforcing the
fundamental rights. Similarly the High Court of various States are empowered
under Article
226 to enforce not only the fundamental rights but other statutory and legal rights
of citizens.
Justice is the first promise of the Constitution, it is rightly said, our Constitution
with its
preambular commitment and our Parliamentary imperatives, is a manifesto of
justice to every
citizen and especially those in the lowliest brackets. Among those who are in the
lowliest
brackets the last one are the children, but the most important one. Children, being
the future
of the country, like other laws, the Constitution which is the fundamental law,
takes care of
1 Hon‟ble Mr. Justice V.R. Krishnaiyer, „Random Reflections‟ at page-27.
2 Narendar Kumar, “Constitutional Law of India”, Edition-1997, Central Law
Agency, at pg. 67.
the juveniles and has carved out protection to them in many provisions which are
detailed
here under:-
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:-
4.1 Right to Education
Initially it was thought that the Directive Principles of state policy enshrined in
Part
IV was merely a pious obligation on the part of the State and that they could not be
enforceable in any courts. Article 37 itself states that these articles are not
enforceable in any
courts but nevertheless the principles laid down therein are fundamental in the
governance of
the country and it was felt that it was the duty of the State to apply these principles
in making
laws.
Thanks to the judicial craftsmanship and legal engineering done by the judges of
the
Supreme Court, many of the articles which remained as governing policy have now
become
enforceable through legal actions brought before these courts. The Supreme Court
in the
Asiads Case3 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.
3 People’s Union for Democratic Rights v. Union of India , (1982) 3 SCC 235;
AIR 1982 SC 1473
This revolutionary interpretation given in the Mohini Jain Case4 came to be
fortified
by the Supreme Court‟s subsequent Constitution bench in the Unnikrishnan
case5.
Unfortunately, the Unnikrishnan 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.
4.2 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.
As stated earlier, though many of the enactments prohinited child labour, the
concept
of child labour differed from legislation to legislation and also between the
legislations made
by the Parliament, and the State legislature. Though Article 24 specifically dealt
with
prohibition of employment of children in Factories, a comprehensive law on child
labour was
enacted only in the year 1986, a full 36 years after the enactment of the
Constitution.
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 Salal
Hydel Project Case6, where the Supreme Court had an excellent opportunity of
interpreting
the true meaning and content of Article 24. The Supreme Court held that though
the
4 Miss. Mohini Jain v. State of Karnataka and others, AIR 1992 SC 1858
5 Unnikrishnan, J.P. and Other v. State of Andhra Pradesh and others, AIR 1993
SC 2178.
6 Labourers Working on Salal Hydro Project v. State of Jammu & Kashmir and
others, 1983 (II) SCC 181.
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 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.
The Supreme
Court in its decision in M.C. Mehta v. State of Tamil Nadu7 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
pathbreakers in the
choosen direction. It is hoped that this compilation will be useful guide for those
who are
connected with the eradication of child labour and also for persons who want strict
implementation of various legislations that were enacted for the benefit of children.
4.3 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)
7 (1991) 1 SCC 283
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.
4.4 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.-
(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them
(2) 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
(3) Nothing in this article shall prevent the State from making any special
provision
for women and children.
(4) 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 India8, 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.
As guardians of the Constitution, the Hon‟ble Supreme Court of India has made
remarkable contribution towards protection of children. The role of the India
Judiciary and
the scope of judicial interpretation have expanded remarkably in recent times,
partly because
of the tremendous growth of statutory intervention in the present era. The activism
of the
Indian Supreme Court to protect the children from various type of exploitation is
8 (1997) 8 SCC 114; AIR 1997 SC 3021
commendable. Although the Supreme Court made laudable directions and
suggestions in
many instances to protect basic rights of poor children, unfortunately these
directions and
suggestions are not followed and implemented by the government machinery
effectively. In
this regard, the performance of the Indian Judiciary stands out as a signal
contribution to the
implementation of human rights generally and that of Child Rights in particular.
As such in the M.C. Mehta v. State of Tamil Nadu9, Supreme Court of India
emphasized on national Constitution and international instruments, including the
Convention
on the Rights of the Child, the Indian government is required to ensure that
children do not
engage in hazardous work. In Lakshmi Kant Pandey v Union of India10 with
object of
ensuring the welfare of the child J. Bhagwati directed the Government and various
agencies
to follow some principles as their constitutional obligation to ensure the welfare of
the child.
This is an extremely important case relating to the adoption of Indian children by
persons
inside and outside India. In the absence of legislation, the Supreme Court framed
elaborate
guidelines in the matter. There was no law to regulate inter-country adoptions and
such lack
of legal regulation could cause incalculable harm to Indian children. Considering
the
possibility of child trade for prostitution as well as slave labor, legal regulation of
such
adoptions was essential. Therefore, Justice Bhagwati created a scheme for
regulating both
inter-country and intra-country adoptions. The Supreme Court held that any
adoption in
violation of or non-compliance with may lead adoption to be declared invalid and
expose
person concerned with to strict action including prosecution. For years, social
activists have
used these directions to protect children and promote desirable adoptions. The
Government of
India framed a national policy in this regard.
9 Supra note 7
10 (1984) 2 SCC 244; AIR 1984 SC 469
Also judiciary has taken the lead to save the child from exploitation and improve
their
conditions. The judiciary has always made concrete efforts to safeguard them
against the
exploitative tendencies of their employer by regularizing their working hours,
fixing their
wages, laying down rules about their health and medical facilities.
The judiciary has even directed the states that it is their duty to create an
environment
where the child workers can have opportunities to grow and develop in a healthy
manner with
full dignity in consensus of the mandate of our constitution.
There are certain other provisions contained in part IV, dealing with the Directive
Principles of State Policy, which although do not lay emphasis on the child welfare
directly,
yet the children are bound to be the beneficiaries if these provisions are
implemented. The
Directive Principles of State Policy embodied in the Constitution of India provides
policy of
protection of children with a self- imposing direction towards securing the health
and strength
of workers, particularly to see that the same in the children of tender age is not
abused, nor
they are forced by economic necessity to enter into avocations unsuited to their or
strength.
The underlying Principles of the Directive Principles of State Policy are -to fix
certain
social and economic goals for immediate attainment by bringing about a non-
violence social
revolution-. Through such a social revolution the constitution also seeks to achieve
the
objectives of the child welfare. To achieve the goals of child welfare, the
constitution has
some provisions in part IV. The Directive Principles of State Policy have been
designed with
an earnest zeal to strive to promote the welfare of people by securing and
protecting as
effectively as it may a social order in which justice, social, economical and
political shall
inform all the institution of national life.
Though these directives are not enforceable by the court, yet these have been
declared
to be fundamental in the governance of the country. It is the obligation of the state
to apply
these principles in making laws. If the government ignores them it will certainly
have to
answer foe them before the electorate at the time of election. Thus it will not be
correct to say
that there is no sanction of enforceability behind these directives. Since these
directives
relating to the welfare of children have also been embodied in the constitution, the
governments are apt to implement them. Though they do not have legal force
behind them
but they have the highest tribute, i.e., public opinion behind them.