Professional Documents
Culture Documents
Constitutional Provision
Constitutional Provision
Module Id 26
Pre-requisites
Objectives
Keywords
Table of Contents
1. Learning Outcomes
2. Introduction: Preamble of Constitution
3. Right to Citizenship
4. Fundamental Rights of the Child
5. Obligation of State for provisions for Child
6. Fundamental Duties
7. Summary& suggestions
1. Learning Objectives:
This module helps the reader initially how to read the constitutional provisions and also make
aware of the significant Articles in the Constitution to claim as Fundamental rights under the
definition of citizenship to any person and where the child is no exception under such
definition. It also provides for the obligation of the states for the protection and welfare and
certain measures under Directive Principles of the Constitution.
By doing this module a person will be certainly very well aware that one has to have
knowledge of these constitutional provisions primarily and also be aware of certain case laws
that guide a person to file a suit in case of violation of rights conferred by constitution or to
make negotiation for introduction of new laws by looking into the certain amendments acts
for children.
A child is a citizen of India due to his birth in the Indian Territory as per Article 5 of the Constitution.
We can deduce that child is also a citizen of India and all the provisions of the Constitution apply to
child also. While reading the constitutional provisions, one should look into all the aspects that
Constitution covered for the comprehensive development of the child. We only look for such
provisions where the child is given a special mention. We can say for example Article 24 that
protects the child and Prohibits employment of children below the age of 14 years in any factory,
mine or in any other hazardous place. But, we should read the thoroughly Indian constitution that
provides for many provisions for the child under the citizenship. As for example Article 38 obligates
states to provide for a “secure a social order for the promotion of the welfare of the people”. Hence
a child is one among the “people” under the Constitution, and a child can claim for his/her a right to
welfare through a “secure social order” in that particular state. In this back droplets, us look into the
constitutional provisions for the child.
The Constitution of India which came into effect from 26.1.1950 in its preamble itself held:
We, the people of India having solemnly resolved to constitute India into a Sovereign Socialist Secular
Democratic Republic and to secure to all citizens: Justice, social, economic and political; Liberty of
thought, expression, belief, faith and worship; Equality of status and of opportunity; and to promote
among them all Fraternity assuring the dignity of the individual and the unity and integrity of the
Nation.
Indian constitution is divided into 22 parts. Part II of Constitution provides for citizenship, and Part III
of the Constitution deals with Fundamental Rights and Part IV with the Directive Principles of State
Policy and Part IVA with Fundamental duties. Now let us look into the legal provisions in these major
parts of the Constitution along with other provisions of the Constitution.
3. Right to Citizenship
Part II of Constitution through Article 5 provides for citizenship for (a) who was born in the territory
of India; (b) either of whose parents was born in the territory of India or(c) who has been ordinarily
resident in the territory of India for not less than five years immediately preceding such
commencement.
As said above Part – III of the Constitution provides for the Fundamental Rights of the citizens. The
Fundamental rights are inclusive Articles from 14 to Articles 35. Fundamental Rights include:
Right to equality
Right to freedom;
Right against exploitation
Right to freedom of religion and
Right to cultural and educational rights
Right to Constitutional Remedies
Article 12 defines the “State”. It includes the Government and Parliament of India and the
Government and the Legislature of each of the States and all local or other authorities within the
territory of India or under the control of the Government of India.
Article 14 states that the State shall not deny any person before the law or equal protection of the laws
within the territory of India. Further two case laws are provided here:
1) A blind employee can offer to retire and request employment to his dependent.
Bhagawan Dass & Co., v. Punjab State Electricity Board, AIR 2008 SC 990=2008(1) SCC 579
2) Employment of young tribals as police officers to fight Naxals is not permitted. In case of Nandini
Sundar and others v. State of Chattisgarh, AIR 2011 SC 2839= 201 (7) SCC 547
Article 15 deals with Prohibition of discrimination against any citizen on the grounds, only of, religion,
race caste, sex, place of birth or any of them- Provision for equal opportunity on the matter of public
employment. Accordingly,
(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 places 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.
Article 28 deals with freedom as to attendance at religious instruction or religious worship in certain
educational institutions. Article 28(1) states that no religious instruction shall be provided in any
educational institution which wholly maintained out of state funds. But (2) of the Article state clause
(1) of this Article is not applicable when the educational institution was administered by State but
has been established under any endowment or trust. Clause (3) makes provision for such
attendance when the person is minor; his guardian has given consent thereto.
4.5. Cultural and Educational Rights
Article29 (1) provides for protection of interests of minorities. Article 29(i) of the part III that deals
fundamental rights thus states that any section of the citizens residing in the territory of India or any
part thereof having a distinct language, script or culture of its own shall have the right to conserve
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Part-IV of the Constitution that provides for the Directive Principles of State Policy is inclusive of
certain special provisions for children and certain other provisions along with other.
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Article 46 deals with Promotion of educational and economic interests of Scheduled Castes, Tribes and other
weaker Section. Article 46 states that
Right to nutrition and standard of living is another right where the state is obligated to improve public health.
Article 47 deals with the obligation of the state to regard the raising of the level of nutrition and the standard
of living of its people, raise of the nutritional level. For the Article 47 reads, “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 endeavor to bring about prohibition of
consumption, except for medical purposes of intoxicating drinks and of drugs which are injurious to health”.
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6. Fundamental Duties:
Part IVA prescribes fundamental duties of citizens. In this, there is a provision for parental
responsibility to provide opportunities for education
a) To abide by the Constitution and respect its ideals and its and institutions, the National Flag
and the National Anthem;
b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
c) to uphold and protect the sovereignty; unity and integrity of India;
d) to defend the country and render national service when calling upon to do so;
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7. Summary& suggestions
Summary
One has to appreciate the highly democratic nature of Indian constitution and its flexibility and scope
for expansions of rights in general and child in particular. It is through many rights vested as
1
This (k) is added by the Constitution (Eighty-sixth Amendment) Act 2002, dated 12-12-2002
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This module dealt is with elaborate provisions of the child in the constitution. In fact rights of citizens
need to be considered as rights of a child too. Hence it is to be understood of the various provisions
bestowed on the child as a citizen of India under Fundamental rights. For example, Article 38 that
provides for secure social order and promotion of welfare; Article 41 that provides for the right to
work, education and public assistance and Article 42 that insists on the states for the provision of
humane conditions of work and maternity benefit are indirectly meant for the welfare and protection
of children. In a family, if the members of the family are employed, and mother is healthy the child
will obviously have a healthy life. Hence one must understand the provisions for citizen in general and
child in particular in relation to other provisions but not in isolation. Thus this study becomes fruitful
and makes the persons to introspect on their role for improvement of a child who needs support not
alone from parents but everybody in the civil society and state.
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Suggestions:
1. Though Constitution defines a “citizen” does not define a “child”. Thus we have varied definitions
in the various legislations. We may consider the following suggestion by Prof. Madabhushi
Sridhar2 on the age of the child:
a) For all protective purposes, the age of the child should be uniformly up to 18 years. This
includes the age for employment which means any person employing the child under 18
shall be subjected penal and civil consequences for the crime and civil wrong of employing
child labour, which shall be totally prohibited. This also means that a child until attaining
the age of 18 shall be entitled to have right to education, compulsory and free.
b) For the purposes of protecting the right to life of girl child, the provision of marriage age
shall also be recommended to be raised up to 21 on par with a male person, as young girls
in this country require more protective cover or at least equal protective cover.
2. N.K. Acharya (2014)3 held that through Articles 36-51 in the directive principles the Constitution
has made it clear that the State in India is a welfare state and its economy is inclusive of all
sections of people particularly the lowest of the law and is expressively non-exploitative in
character.
2
Madabhushi Sridhar, Discussion Paper on Legal Provisions Regarding Age of Child To protect the Rights of Children;
NALSAR University of Law, Hyderabad
3
N.K. Acharya (2014). The Constitution of India (with important Box Items, Comments, case laws and amendments up-to-
date). Hyderabad: Asia Law House.
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4
Chinmayee Satpathy, Child Welfare Policies and Programmes in India, in Yojana November, 2012 pp.23-27
5
Savitha Bhakry (2006), Children in India and their rights, New Delhi: National Human Rights Commission
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