CHILD RIGHTS IN INDIA: ROLE OF JUDICIARY

Dilemma of the age of child

India’s constitution offer extensive safeguards to the human rights of children. Recent policies
and programs as well as judicial measures have further strengthened prospects for realizing the
full range of children rights. The government has declared its commitment to ‘every child’. In
reality however more than country’s 400 million children continue to face challenges in their
effort to survive, develop and prosper to their full potential in a secure and nurturing
environment.
The dilemma begins right from the definition of the ‘CHILD’. Different acts and statutes define
the child variously as regards the requirement of age. While the convention states that the child
is the person who has not attained the age of 18 years i.e. is not 18 years old; it still remains a
question.
The differences are enumerated as follows:

STATUTES / ACTS  AGE OF THE CHILD

Indian Majority Act,1875 18 years

21 years for male and 18 years for

The Child Marriage Restraint Act, 1929
female

The Children (Pledging of Labour) Act, 1933 15 years

The Factories Act,1948 14 years

The Apprentices Act, 1961 14 years

The Women’s and Children’s Institutions

18 years both for male and female
(Licensing) Act, 1956

The Mine’s Amendment Act, 1983 18 years

The Child Labour (Prohibition and Regulation 14 years

 Act), 1986

The Immoral Traffic (Prevention ) Act, 1986 16 years

The Juvenile Justice Act, 2015 18 years

The Draft Bill of The National Commission For

14 years 
Children, 2000

ROLE OF JUDICIARY:
From the Seventh Five-Year Plan onwards, the judiciary and the Supreme Court too have played
an active role in upholding the rights of the child. Some of the most important examples of
social action litigation for children are the following cases, each of which has been a landmark
in the process of ensuring children’s rights:
Laxmikant Pandey vs. Union of India [AIR (1984) SC 469, AIR (1986) SC 276, AIR (1987) SC 232]
on Adoption of Children: The Hon’ble Supreme Court of India this case laid down few doctrine
governing the rules for Inter-Country adoption. The case was instituted on the basis of a letter
addressed to the court by a lawyer, Laxmikant Pandey alleging that social organisations and
voluntary agencies engaging in the work of offering Indian children to foreign parents are
indulged in malpractices.
Shiela Barse vs. Union of India [AIR (1986) SC 1883, AIR (1988) SC 2211] on Trafficking of
Children: On 12th July, 1986 this Court issued various directions in regard to the physically and
mentally retarded children as also abandoned or destitute children who are lodged in various
jails in the country for ‘safe custody’. Giving further directions,
So far as a child-accused of an offence punishable with imprisonment of not more than 7 years
is concerned, a period of 3 months from the date of filing of the complaint or lodging of the
First Information Report is the maximum time permissible for investigation and a period of 6
months from the filing of the charge sheet as a reasonable period within which the trial of the
child must be completed. If that is not done, the prosecution against the child would be liable
to be quashed. Every State Government shall give effect to this principle or norm in so far as
any future cases are concerned.
M.C. Mehta vs. State of Tamil Nadu [JT 1990 SC 263] on Problem of Child Labour: On the issue
of child labour, The Court held that Articles 24, 39(e) and 9(f), 41 and 47 obligated the State to
abolish child labour while ensuring healthy development of the child. Under Article 32 the
Government of India is required to take legislative, administrative, social and educational
measures to ensure protection of the child from hazardous exploitation and its healthy
development. In the domestic sphere, the Court held that there are several pieces of legislation
such as the Child Labour (Prohibition and Regulation) Act, 1986 (the Act) that protect children
from exploitation. However, the Court took note of the fact that poverty compels a family to
push their child into hazardous employment. The Court held that it was thus necessary to fulfill
the legislative intent behind the Act to ensure the healthy development of a child.
Vishal Jeet vs. Union of India [1990 (3) SCC 318] on Problem of Child Prostitution : The petition
brought out the fact that poor parents on account of acute poverty were selling their children
and young girls hoping that their children would be engaged only in household duties or
manual labour. However, pimps – brokers – keepers either purchase or kidnap them by
deceitful means and unjustly and forcibly inveigle them into ‘flesh trade’. TheSC issued the
following directions inter alia to the State Governments and Union Territories

1. Direct 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 measures for
care, protection, treatment, development and rehabilitation of victims.

Unni Krishnan vs. State of Andhra Pradesh [1993 (1) SC 645] on Education of Children:
The case involved a challenge by certain private professional educational facilities to the
constitutionality of state laws regulating capitation fees charged by such institutions.
The Supreme Court held that the right to basic education is implied by the fundamental right to
life (Article 21) when read in conjunction with the directive principle on education (Article 41).
The Court held that the parameters of the right must be understood in the context of the
Directive Principles of State Policy, including Article 45 which provides that the state is to
endeavor to provide, within a period of ten years from the commencement of the Constitution,
for free and compulsory education for all children under the age of 14.
Gaurav Jain vs. Union of India [1997 (8) SCC 114] on Problems of Prostitution and Children
forced into Prostitution :
This writ petition has been filed pleading for separate schools and hostels for the children of
prostitutes. On behalf of respondents, it was contended that since they are in fact unwanted
children of prostitutes it is in the interest of such children and the society at large that they are
segregated from their mothers and be allowed to blend with others and become part of the
society.
Gita Hariharan vs. Reserve Bank of India [(1999) 2 SC 228] on Guardianship:
In GithaHariharanvs Reserve Bank of India, which challenged the constitutional validity of
Section 6, the Supreme Court deemed both mother and father as natural guardians of a child.
The apex court also ruled that ‘after’ cannot be given a literal interpretation, and the child’s
welfare has precedence in determining the guardian of a child.
“The father by reason of a dominant personality cannot be ascribed to have a favoured right
over the mother in the matter of guardianship since both fall within the same category,” the
court said in 1999.
Centre for Enquiry into Health and Allied Themes (CEHAT) & Others vs. Union of India &
Others [2000 SC 301]
Besides the above cited landmark judgments, few other important cases regarding free and
compulsory education in India are Mohini Jain vs State of Karnataka, Nitte Education Trust vs
Union of India, Krishnagiri District Private vs State of Tamil Nadu, A Civil Rights vs Govt. of NCT
of Delhi, Adam B. ChakivsMr.ParasKuhad, M. Veera Siva Nagi Reddy vs Osmania University, O.A.
Joseph vs Chairman, Board of Governors, Vinay N. Pandyavs Union of India, Maharshi Mahesh
Jogivs State of MP etc.
A great legal breakthrough was achieved in 1992 when the Supreme Court of India held in
Mohini Jain’s, that the ‘right to education’ is connected to fundamental rights enshrined under
Part III of the Constitution” and that ‘every citizen has a right to education under the
Constitution’. Another historic judgment by the Supreme Court of India in 1993 radically
transformed the status of Article 45. In its Unnikrishnan Judgment (1993), the Supreme Court
ruled that Article 45 in Part IV has to be read in ‘harmonious construction’ with Article 21 (Right
to Life) in Part III of the Constitution, as Right to Life loses its significance without education.