Critical Ananlysis of the Provisions Relating to Children un

Critical Study of the Provisions Relating to Children under Indian Constitution

Constitutional Law I

                                      Prepared by: Urja Dave

Introduction

It is a harsh reality that children are future hope and valuable asset as well as a liability for a nation. Both at the national level and international levels greater attention is being focussed on well-being and welfare of children. Future human resource development of a country depends on the all round development of its children.

Most of the countries have included welfare provisions in their constitutions. India also being a democratic welfare state provides for the protection of children in its constitution against all types of exploitations.

The framers of Indian Constitution incorporated various important provisions for protection and betterment for children in the view of the dictum “Children are the wealth of nation.” Such provisions of the constitution are expressly or impliedly, direct or indirect related with the protection of childhood, child education and elimination of child labour system in India.

The constitution of India carries important expression of the government policies against the abuse of child labour. Fundamentally the constitution provides that ‘no child below the age of fourteen. It recognizes the need for granting special protection to children. The children should also have their distributive justice in future in free India. Therefore, special provisions ensuring justice to children have been incorporated in part III with fundamental rights and part IV devoted to Directive Principles of State Policy. Provisions regarding children's welfare embodied in our constitution can be divided into two categories-explicit provisions and Implicit Provisions.

The explicit Provisions dealing with the child welfare are:

·       Article 15(3): it empowers the state to make special provisions for children and women.

·       Article 24: it prohibits the employment to children in factories, etc.

·       Article 39(e) and (f): it obligates the state to safeguard the health of children and afford opportunities to grow with dignity.

·       Article 45: it provides for free and compulsory education for children.

The implicit Provisions dealing with child welfare may be mentioned as under:

·       Article 14: equality before law.

·       Article 23: prohibition of traffic in human beings and forced labour.

·       Article 38: it endeavours to secure a social order for the protection of welfare of the people.

·       Article 41: Right to work, to education and to public assistance in certain cases.

·       Article 42: provisions for just and humane conditions of work and maternity relief.

·       Article 46: Promotion of educational and economic interest of S.C, S.T, and other weaker sections.

·       Article 47: it obligates the state to raise the level of nutrition and the standard of living and to improve public health.

Children’s Right Protection under Fundamental Rights

There is wide description about fundamental rights in part III of our constitution regarding children. Fundamental rights are limitations upon all the powers of the Government, Executive as well as Legislative and they are essential to the preservation of public and private rights, notwithstanding the representative character of political institutions. The rights are regarded as fundamental because they are most essential for the individual for the development of his full intellectual, moral and spiritual potentialities. The negation of these rights will keep the individuals personality underdeveloped.

The Fundamental Rights in Indian Constitution guarantees some fundamental rights only to citizens of India while the others guaranteed to any persons, within which the fundamental rights of the children are also implicitly included. The children have rights to enjoy all the fundamental rights which are guaranteed to the citizens of India.

There are also some fundamental rights expressly provided for children and some other fundamental rights which are also applicable for children. Article 14 guarantees equality before law and equal protection of laws to all persons within the territory of India.

Article 15 prohibits discrimination on the ground of religion, race, caste, sex, class or place of birth or any of them. But Article 15(3) enables the state to make provisions in its law for giving favourable treatment to make special treatment to children and women. Though, no ground is mentioned, preferential treatment is permitted on consideration of inherent weakness of children, Article 15(3) serves as an exception to Article 15(1) and 15(2), Article 15 in general prohibits the discrimination on the ground of religion, race, caste, class, sex or place of birth. H.M.Seervai is of the view that since Article 15(1) does not make age a prohibited ground of discrimination the reference to children in Article 15(3) appears to be pointless.[1]

It is submitted that specific positive provisions serves the purpose of avoiding any controversy and demonstrates the concern, however inadequate of the framers of the constitution that state shall strive to promote the welfare of the people including children. Our solicitude for children and repulsion for the exploitation of children of tender age impelled our founding fathers to make a specific mention of them; the state can make law for the welfare of children, giving them preferential treatment over other persons in the society. It further proclaims that the state shall, in particular, direct its policy towards securing that the health and strength of the tender age of children. It further enjoins that childhood and youth are to be protected against exploitation against moral and material abandonment. Apart from that the Constitution also endeavours to provide free and compulsory education for all children until they complete the age of fourteen year.

Article 21 says “no person shall be deprived of his life or personal liberty except according to the procedure by law”. This provision of the constitution is very important for human race and humanity. In “Fancis Cralie Mullin v. Union Territory of Delhi” [2] Hon’ble Apex Court has interpreted, that right to live includes the right to live with human dignity and all that goes along with it, namely the bare necessaries of life such as adequate nutrition, clothing and shelter and facilities for reading, writing and expressing oneself in diverse forms freely moving about and mixing with fellow human beings. Virtually right to livelihood received protective umbrella under canopy of Articles 14 and 21 of the Constitution of India. The basic facilities enumerated are the minimum requirements which must exist in order to enable a person to live with human dignity and no government has right to take any such action which will deprive a person of the enjoyment of the basic essentials.

Article 21A: the Constitution (86^th Amendment) Act 2002 has added a new Article 21A after Article 21 and has made education for all children of the age of 6 to 14 a fundamental right. It provides that “the state shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the state may, by law, determine”[3] . Indian civilization recognises education as one of the pious obligation of the human society. To establish and administer educational institution is considered a religious and charitable object. Education in India has never been a commodity for sale. Looking at the economic front even after six decades of achieving independence, 30% of the population is living below poverty line and bulk of the remaining population is struggling for existence under poverty conditions. The fundamental rights cannot be appreciated and fully enjoyed unless a citizen is educated and is conscious of his individuality dignity.

In Unni Krishnan, J.P. and others v. State of A.P. and others[4] the Supreme Court declared that the right to education for the children of the age 6 to 14 is a fundamental right. Even after this, there was no improvement. A demand was raised from all corners to make education a fundamental right. Consequently, the government enacted Constitution (86^th amendment) Act, 2002 which would make education a fundamental right.

The state have a duty to impart education and particularly primary education having regard to the fact that the same is the fundamental right within the meaning of Article 21A, but as the Government has limited resources nor the ability to provide for the same it appears that the legislature has permitted the societies to institute educational institutions from the savings made from the unaided institutions.[5]

Article 23 of the Constitution prohibits traffic in human beings, beggar and other similar forms of forced labour and exploitation. Although this article does not specifically speak of children, yet it is applied to them and is more relevant in their context because children are the most valuable section of the society. It is a known fact that many children are exploited even by the parents who allow their exploitation because of their poverty. And in the absence of parents their exploitation by close relatives still deeper. They are deprived of education, made to do all sorts of work injurious to their health and personality. In rural areas, children are pledged by destitute parents to the landlords as full-time servant or part-time worker to look after both domestic and agricultural operation. In urban areas, the exploitation of children on myriad form exists such as helpers to artisans and skilled workers and also as domestic servants. Millions of children are exploited in violation of this fundamental right and no adequate legislature and administrative measures have been taken by the state.

 The word “beggar” has been explained by the Hon’ble Apex Court in “People Union for Democratic Rights v. Union of India”[6] and held that labour or service for remuneration which is less that minimum wage, amounts to violation of article 23. Even inadequate payment for the work rendered by the child amount to beggar or forced labour. Sometimes, the children of tender age are enticed for the flesh trade, thus all in violation of Article 23.

Article 24 says that “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment”.

In the context prevailing poverty in the country it would be extremely difficult to implement the above provision. Employment of children below a particular age is prohibited so also hazardous or injurious work may be prohibited to children taking into consideration their physical structure. This article does not create an absolute bar to the employment of children below the age of 14 years. Moreover, it does not prohibit their employment altogether. The employment is prohibited only in factories or mine or in any other hazardous occupation. This provision raises a question as to what are the ‘hazardous’ employment. While interpreting the nature and extent of hazardous employment Hon’ble Apex Court in “labour working on Salal Project v. State of J.K”[7] has held that child below the age of 14 years cannot be employed and allowed to work in construction process. This Article however does not prohibit their employment in any innocent or harmless job or work.

In a landmark judgment in ‘M. C. Mehta v. State of Tamil Nadu’[8], the Apex Court has held that children below the age of 14 years cannot be employed in any hazardous industry, mines, or other works and has laid down exhaustive guidelines how the state authorities should protect economic, social and humanitarian rights of millions of children, working illegally in public and private sections. The matter was brought before the court by a public spirited lawyer Mr. M. C. Mehta by way of public litigation under art 32 of the constitution. He told the court about the plight of the children engaged in Sivakasi Cracker Factories.

Thus from the study of above articles it is quite clear that children have been given full protection under fundamental rights.

Child Rights and Directive Principles of State Policy

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 t 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.

Article 39(e) says 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) says 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.

Clause (f) was modified by the constitution (42^nd amendment)Act 1976 with a view to emphasize the constructive role of the state with regard to children. In M. C. Mehta v. State of Tamil Nadu[9] it was held that in view of Art 39 the employment of children within the match factories directly connected with the manufacturing process of matches and fireworks cannot be allowed as it us hazardous. Children can, however be employed in the process of packing but it should be done in area away from the place of manufacturing to avoid exposure to accidents.

Article 42 says that : “The State shall make provision for securing just and humane condition of work and for maternity relief”. The measures for maternity relief are meant for expectant mothers and mothers during the period of pregnancy and after the birth of the child. These measures meant for providing prober health care and other facilities to the mothers before and after the child birth are expected to promote the health of children and to provide healthy environments for their bringing up.

Article 45: says that “The State shall endeavour to provide early childhood care and education for all the children until they complete the age of fourteen years”. This Directive signifies that it is not only confined to primary education, but extends to free education whatever it may be upon the age of 14 years. Article 45 is supplementary to Article 24 on the ground that when the child is not to be employed before the age of 14 years, he is to be kept occupied in some educational institutions. It is suggested that Article 24 in turn supplements the clause (e) and (f) of Article 39, thus ensuring distributive justice to children in the matter of education.

Virtually Article 45 recognises the importance of dignity and personality of the child and directs the state to provide free and compulsory education for the children upto the age of 14 years. Hon’ble court in Mohini Jain case[10] has observed that the significance of child education and other related provisions of the constitution, along with the preamble promises to secure to all citizens of the country “Justice Social, Economic and Political”, liberty of thoughts, expression, belief, faith and worship. It further provides “equality of status and of opportunity” and assures the dignity of the individual.

It is suggested that Article 24 and 45 should be amended so as to raise the age limit from 14 to 16 years. By doing so the children’s education atleast upto matriculation, would be ensured or the proper growth and development of their personality. There are various state Acts, which stipulate the upper age limit of 16 years.

Article 47 says that, “ The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among  its primary duties and, in  particular, the state shall endeavour to bring about prohibition of the consumption except for medical purposes of intoxicating drinks and of drugs which are injurious to health”. Thus, it is the responsibility of the state to provide nutritious food to children as the word “people” includes not only adults but also children. This provision becomes more relevant in case of children as the malnutrition can cause irreparable danger to the personality of the children through mental retardation and blindness.

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 government are apt to implement them. Though they do not have legal force behind them but they have the highest tribunal, i.e. , public opinion behind them.

Conclusion

The foregoing study reveals that the preamble of Indian Constitution stands as a testimony to witness the presence f philosophy of socio-economic and political justice under our National charter. In order to achieve the goals of social, economical and political justice, the constitution of India guarantees special protection to the children against exploitation. To import justice to them, the state has been empowered to make special provisions to their welfare so as to bring them at par with other sections of the society. There are various provisions in the constitution which put the state under duty to ensure that the tender age of children is not abused and they are not exposed to economic necessity to enter avocation unsuited to their age and strength.

Thus, analysis of various provisions contained in our National Charter makes it abundantly crystal clear that it is the duty of the state to promote the welfare of children and help them grow into good citizens of the country. Indeed, our constitution-makers are wise enough as they were sure that the dream of India’s of their vision development would not come true if children of the country are not nurtured and educated.

Thus, we find that constitution of India, both in the Directive Principles of State policy and as a part of the Fundamental Rights has laid down that state shall direct its policy towards recurring good health and strength of workers and that the tender age of children, are not abused or exploited. A child must be given opportunities and facilities to develop in a healthy manner and in condition of freedom and dignity and no citizen will be forced by economic necessity to enter avocations unsuited to their age and strength.

Although, our constitutional framework and national policy for child welfare take into account very well all phases of child development. But a large number of legally uncovered gaps due to administrative hindrances frustrate the objective of child welfare.

In spite of all the constitutional and conventional protection accorded to the child workers in our country; the fact remains that children of tender age are forced to take up economic pursuits to augment the income of their family in most of the cases in the lower income bracket.

At the time of making of the constitution, it was envisaged that within 10 years, all the states will make primary education compulsory. But unfortunately till 1983, the following states had no act or rule in favour of compulsory primary education-Bihar, Manipur, Meghalaya, Nagaland, Orissa, Sikkim, Tripura, Arunachal Pradesh and Mizoram.

The guardians of the law are very superficial regarding the rights of children. It seems that only the vocal groups get advantage and the children will have to be vocal.