INDEX

SR.NO. PARTICULARS PAGE

NO.

1. INTRODUCTION 5.

2. WHO IS A CHILD? 6.

3. WHAT ARE CHILD RIGHTS? 6.

4. WHY DO CHILDREN NEED PROTECTION? 7.

5. CONSTITUTIONAL PROVISIONS RELATING TO 8.

WELFARE AND PROTECTION OF CHILD

6. CONCLUSION 14.

7. BIBLIOGRAPHY AND WEBLIOGRAPHY 15.

3
 TABLE OF CASES

PAGE
SR.NO. PARTICULARS NO.

1. GAURAV JAIN v. UNION OF INDIA 8.

2. KISHAN PATHNAYAK v. STATE OF ORISSA 9.

3. MOHINI JAIN v. STATE OF KARNATAKA 9.

4. UNNIKRISHNAN v. STATE OF ANDHRA PRADESH 9.

5. VISHALJEET v. UNION OF INDIA 11.

6. UP BANDHUA MUKHTI MORCHA v. UNION OF INDIA 11.

4
 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.1

Children are necessarily entitled to various specific provisions in India and across the world,
but their proper implementation can only lead to their realisation. Violation of rights of
children can be seen in the form of abuse, trafficking, inadequate health facilities,
malnutrition, and so on. The UN Convention on Child Rights led to development plans,
strategies and various other programs to combat the violation of child rights.

A country like India, with the population level requires, needs to pay more attention to
enforcing all the legislations, policies, rules and regulations that come out as notifications, it
also needs assessment from time-to-time. Despite the presence of International and National
Standards, children remain a vulnerable section of the society in need of special care and
protection. The country needs to interpret each section of an Act in its context and overcome
its hurdles by finding means to provide equal access to education to all.

Through affirmative action mandated by the constitution of India, we can hope to achieve all -
round development. India, being a diverse country, improvement has always been unstable,
and some areas have come up well in the development indicators while others are still
staggering behind. More and more children are malnourished today, and these issues need to
be addressed for a more comprehensive framework. As per 2011 census, the growth in the
implementation of child rights in India is stunted, we could hope to grow it with proper
implementation of the laws.2

1
Child Rights and the Constitution (legalserviceindia.com) accessed on 6 th June at 7:00 p.m.
2
Constitutional Provisions Relating To Protection And Welfare Of Children (lawcorner.in) accessed on 6 th June
2021 at 7:30 p.m.

5
Who is a Child?

According to UNCRC, a “Child” means every human being below the age of eighteen years
unless, under the law applicable to the child, majority is attained earlier. In India, various
laws related to children define children in different age limits.

According to Article 21(a) of the Indian Constitution, all children between the ages of six to
fourteen should be provided with free and compulsory education. The child labour
(Prohibition and Regulation) Act, 1986 defines a child as a person who has not completed
fourteen years of age.

The Juvenile Justice (Care and Protection of Children) Act, 2000 changed the definition of
child to any person who has not completed eighteen years of age. Because of its umbrella
clauses and because it is the latest law to be enacted regarding child rights and protection,
many are of the opinion that the definition of child found in the Juvenile Justice Act, 2000
has considered the legal definition for a child in all matters. 3

What are Child Rights?

The most basic needs of the children are referred to as rights. The most basic needs of
children are referred to as rights. Child rights are specialised human rights that apply to all
human beings below the age of 18. According to the United Nations Convention on the
Rights of the Child (UNCRC,1989), Child Rights are minimum entitlements and freedoms
that should be afforded to all persons below the age of 18 regardless of race, color, gender,
language, religion, opinions, origins, wealth, birth status or ability and therefore apply to all
people everywhere. The specialised rights found by them are Right to Survival, Protection,
Participation and Development.

Universally child rights are defined by the United Nations and the United Nations
Conventions on the rights of the Children (UNCRC) under four broad classifications:

• Right to Survival: A child’s right to survival begins before a child is born. According
to Govt of India, a child life begins after twenty weeks of conception. Hence, the right

3
Constitutional Provisions of Children- Who is A Child? Hausla 2017 for Children of Child Care Institutions
(Important)- Examrace accessed on 6th June 2021 at 11:00 p.m.

6
 to survival is inclusive of the child rights to be born, right to minimum standards of
food, shelter and clothing and the right to live with dignity.
• Right to Development: Children have the right to all forms of development.
Emotional, mental and physical. Emotional development is fulfilled by proper care
and love of a support system, mental development through education and learning and
physical development through recreation, play and nutrition.
• Right to Protection: A child has the right to be protected from neglect, exploitation
and abuse of home and elsewhere.
• Right to participation: A child has the right to participate in any decision-making that
involves him/her directly or indirectly. There are varying degrees of participation as
per the age and maturity of the child.

Who needs Protection?

“Child in need of care and protection” means a child:

• Found without any home or settled place or abode and without any ostensible means
of subsistence.
• Found begging, or either a street child or a working child.
• Resides with a person (whether guardian of the child or not) who:
➢ Has threatened to kill or injure the child and there is a reasonable likelihood of
the threat being carried out
➢ Has killed, abused or neglected some other child or children and there is a
reasonable likelihood of the child in question being killed, abused or neglected
by that person
• Mentally or physically challenged or suffering from terminal or incurable diseases
with no support.
• With parent or guardian who is unfit or incapacitated to exercise control over the
child.
• Does not have parent and no one is willing to take care of or whose parents have
abandoned (or surrendered) him or who is missing and run away child and whose
parents cannot be found after reasonable injury.
• Vulnerable and is likely to be induced into drug abuse or trafficking
• Likely to be abused for unconscionable gains

7
 • Victim of any armed conflict, civil commotion, or neutral calamity. 4

CONSTITUTIONAL PROVISIONS RELATING

TO PROTECTION AND WELFARE OF
CHILDREN

PART III – FUNDAMENTAL RIGHTS

1. ARTICLE 14 – RIGHT TO EQUALITY

Article 14 of the Constitution of India 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.” 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.

In the case of Gaurav Jain v. Union of India,5 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

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

4
Supra note 3
5
[(1997) 8 SCC 114; AIR 1997 SC 3021]

8
3. ARTICLE 21 – RIGHT 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.

In the case of Kishan Pattnayak v. State of Orissa, 6the 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,
19927 and Unnikrishnan v. State of Andhra Pradesh, 1993,8 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.

6
1989 AIR 677, 1989 SCR (1) 57
7 (1992) 3 SCC 666
8 (1993) 1 SCC 645

9
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,9 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 10– 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.

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

9
1990 AIR 1412, 1990 SCR (2) 861
10 (AIR 1984 SC 802)

10
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.

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, 199111, the Supreme Court of India stated menace
of child labour was widespread. Therefore, it issued wide ranging directions in the context of
employment and exploitation of children in Sivakasi prohibiting employment of children
below the age of 14 and making arrangements for their education by creating a fund and
providing employment to the parents or abled bodied adults in the family. These directions
were reiterated in Bandhua Mukti Morcha v. Union of India,[8] concerning the employment
of children in carpet weaving industry in India. 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 in the case of Salal hydro project v. state
of J&K. That is why Article 24 limits the prohibition to only factories, mines and other
hazardous employment. The court had clearly lost an opportunity of interpreting Article 24 as
a charter for total elimination of child labour, and making it compulsory for children to be
found in school upto primary. But even after 10 years after the child labour( prohibition and

11
(1996) 6 SCC 756

11
abolition acts, 1986, the act once again continues permitting child labour where it is not
prohibited. The apex court are not however willing to reconsider its decision and continued to
give sops to employers so that in some way or the other child labour is permitted even in
industries which are hazardous to the health of the children. In the case of M.C.Mehta, justice
M.M.Punchi expressed his thoughts on child labour. He stated that “I see in this scheme
(child labour) varied kind of benefits accruing depending upon the social strata in which such
schemes are introduced. It would be an ideal transition to adulthood; it will provide a sence of
responsibility and instill confidence and pride in the work of the child; very importedly the
child will understand the concept of dignity and labour, it will be an extremely constructive
use of time by the child, and it will also be a welcome source of income in the family….”.
The judge was also quoted saying that the elimination of child labour altogether would be
harsh…

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.

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.

12
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.

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.

13
 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.

As justice Bhagwati has rightly quoted “the child is a soul with a being, a nature and
capacities of its own, who must be helped to find them, to grow into the maturity, into
fullness on physical and vital energy and most breadth, depth and height of its emotional,
intellectual and spiritual being” Children require guidance and support. They do not know the
technicalities of life. It is for citizens like us to take their hand and show them the right way.
The social workers play an important role in eradicating social evils and thus they is need for
stricter analysis on their qualification and professional capacity.

Although there is much legislation by the government to curb many social evils against
children, the governments are not taking any enough steps to ensure that children, the future
citizens of our country are protected. These are the children that would lead our country to a
healthy and prosperous nation. The final affirmation on child rights is possible only if there is
international cooperation and implementation of the right to development.

14
 REFERENCES
1. Constitutional Provisions Relating To Protection And Welfare
Of Children (lawcorner.in)
2. coi-4March2016.pdf (iitk.ac.in)
3. Constitutional Protection of Women and Children in India
(legalbites.in)
4. Children Rights under the Constitution (legalservicesindia.com)
5. Legal framework for the protection of child rights - iPleaders

15