देवी अहिल्या

विश्वविद्यालय ,इन्दौर
DEVI AHILYAVISHWAVIDYALAYA ,INDORE

SCHOOL OF LAW

[Link].B. (HONS)

II INTERNAL

Subject:- CONSTITUTION-I

TOPIC- CHILDREN RIGHTS AND LEGAL FRAMEWORK FOR

THEIR PROTECTION UNDER THE CONSTITUTION

Submitted to: Submitted by:

Mrs. ANAMICA SHRIVASTAV PRIYA SONI

(BALLB) Sem2nd

Roll no.-2020/39

1
 TABLE OF CONTENTS

1. RESEARCH OBJECTIVE …………………4

2. RESEARCH QUESTIONS …………………4
3. RESEARCH METHODOLOGY …………………4
4. INTRODUCTION …………………4
5. CONSTITUTIONAL PROVISION WHICH PROTECTS THE RIGHT OF
CHILDREN IN INDIA ....………………6
6. LAWS WHICH BIND PROTECTION OF CHILD IN INDIA…………10
7. LANDMARK DECISION ON RIGHTS OF CHILDRE ………………13
8. SUGGESTIONS ………………15
9. CONCLUSION ………………15
10. REFRENCES ...……………16

2
 ABSTRACT

While almost every state in the world has ratified the United Nations Convention on the Rights
of the Child, there is less consensus around the manner in which the rights protected by it should
be protected in national constitutions.

The rights of children are infringed in India despite all the constitutional, legal and institutional
provisions. Child labour, child marriage, child abuse, and exploitation are some problems that
violates children's rights on a large scale. The framers of the constitution expressed their concern
about provisions on the protection of children and made arrangements for the safety of children
that includes to protect their intellectuality, body, honour, their rights etc. Many provisions
concerning the lives of children were included in the Constitution. Furthermore, in order to
strengthen and safeguard the constitutional provisions, many laws, policies, and schemes have
also been enacted.

This paper will analyse the status of the children and their rights in relation to the Indian
Constitution, various legislations, other statutes, rules, regulations and laws in place regarding
child rights. The paper will also try to get a deeper insight into the problems and various acts and
constitutional measures to protect the children's right. Children are innocent and need guidance
and assistance. Finally, we will conclude what we can do to have better systems in place after
looking at the schemes and policies implemented by the government.

3
RESEARCH OBJECTIVE:-

The main aim is to analyse the status of the children and their rights in relation to the Indian
Constitution, various legislations, other statutes, rules, regulations and laws in place regarding
child rights and also look into the problems faced by children and the solutions to it.

RESEARCH QUESTIONS:-

1. Who is child?
2. Why there is need of different statutes, laws and acts for protection of children?
3. What are children rights and legal framework for their protection under constitution?

RESEARCH METHODOLOGY:-

Research Method applied in this project is doctrinal. An explanatory study is used in order to
find underlying articles; therefore, the data would be mainly collected from secondary sources of
information. These will include books, journals and internet. Keeping this in view, the researcher
has gone through different books, journals, Web references, E-journal, reports etc. The relevant
material is collected from the secondary sources. Materials and information are collected both
legal sources like books.

INTRODUCTION

In India, there are 472 million children below the age of 18, accounting for 39 percent of the total
population. Children aged 0 to 6 years make up a significant portion of this figure, accounting for
29% of the total. Furthermore, 73 percent of Indian children live in rural areas, where they have
limited access to basic needs including nutrition, free health care, education, and protection.
Because of the greater percentage of children residing in rural areas, negative repressions of
children's fundamental rights are common.

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. The Constitution makers were aware of the fact

4
that children are the promises of the nation, the future of India was in the hands of children. They
were concerned about making provision for the protection of the children. By protection, they
meant protection of mind, protection of the body, protection of dignity, protection of their
rights…etc. The Constitution had laid down many provisions which dealt with the lives of the
children. In order to strengthen the provisions in the constitution, there has been the introduction
of many legislations, policies, schemes etc.

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.

 Who is a Child?

According to international law, a ‘child’ means every human being below the age of 18 years.
This is a universally accepted definition of a child and comes from the United
Nations Convention on the Rights of the Child (UNCRC), an international legal instrument
accepted and ratified by most countries.

 What are Child Rights?

The most basic needs of the 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

5
all people everywhere. The specialised rights found by them are Right to Survival, Protection,
Participation and Development.

 Why do children need special attention and why there is need for their rights
and different laws for them?

 Children are more vulnerable than adults to the conditions under which they live. Hence,
they are more affected than any other age group by the actions and inaction of
governments and society.
 In most societies, including ours, views persist that children are their parents’ property, or
are adults in the making, or are not yet ready to contribute to society.
 Children are not seen as people who have a mind of their own, a view to express, the
capacity to make a choice and an ability to decide.
 Instead of being guided by adults, their life is decided by adults.
 Children have no votes or political influence and little economic power. Too often, their
voices are not heard.
 Children are particularly vulnerable to exploitation and abuse.
 Children in India go through various problems like, child labor, child abuse, child
marriges, child trafficking, domestic violence, not getting proper opportunities for
education, etc. so various laws and statutes are required to protect them from all this.

CONSTITUTIONAL PROVISION WHICH PROTECTS THE RIGHT OF

CHILDREN IN INDIA

1. ARTICLE 14 – RIGHT TO EQUALITY-

According to this article, the State shall not deny to any person the equality before the law or the
equal protection of laws within the territory of India. Citizen of India including children must be
treated equally before the law and must be given equal protection by law without any
discrimination or arbitrariness. This right which is provided in the Indian Constitution protects
the rights of children so that their dignity and integrity as a child is not exploited. Children being
vulnerable have more chance to be treated unequally in the Indian society. Article 15 of the
Indian Constitution prohibits discrimination. In Article 15(3), nothing in this Article shall

6
prevent the State from making any special provision for women and children. It is very clear
from Article 15(3) that “special provision” does not mean unequal treatment but it is established
for the well being and development of the children in India.

2. RIGHT TO LIFE

ARTICLE 21- PROTECTION OF LIFE AND PERSONAL LIBERTY-“Every individual

possesses the right to life, liberty, and the security of individuals,” according to the Indian
constitution of 1950, and “no one shall be deprived of his life or personal liberty...” Even after
the constitution's protection of this fundamental right, the concerns about life, survival, and child
development remain the same. Thousands of children die every day, not only because of poverty,
but also as a result of the widespread practice of female infanticide.

3. ARTICLE 21A –RIGHT TO EDUCATION

According to this article, The State shall provide free and compulsory education to all the
children of the age of six to fourteen years in such manner as the State may by law, determine.
The Constitution (Eighty-sixth Amendment) Act,2002 inserted Article 21A in the Constitution to
provide free and compulsory education of all the children in the age group six to fourteen years
as a Fundamental Right. There have been many backlashes in providing education to all the
children in the state. There are many reasons for the same. The right to education is reflected in
international law in Article 26 of the Universal Declaration of Human Rights and Article 13 and
14 International Covenant on Economic, Social and Cultural Rights. Most importantly these
articles ensure education to all the children irrespective of religion, caste, gender and financial
condition. This article makes sure that no child is deprived of his/her basic education. Everyone
shall be provided with elementary education.

4. RIGHT AGAINST EXPLOITATION( ARTICLE 23&24)

ARTICLE 23- PROHIBITION OF TRAFFIC IN HUMAN BEINGS AND FORCED

LABOUR-(1)Traffic in human beings and beggar and other similar forms of forced labour are
prohibited and any contravention of this provision shall be an offence punishable in accordance

7
with law. (2)Nothing in this Article shall prevent the state from imposing compulsory service for
public purposes, and in imposing such service the State shall not make any discrimination on
grounds only of religion, race, caste or class or any of them.

Traffic in human beings means to deal in men and women like goods, such as or to sell or let or
otherwise dispose them of. It would include traffic in women and children for immoral or other
purposes. The immoral traffic (prevention) Act, 1956 is a law made by parliament under Article
35 of the constitution for the purpose of punishing acts which result in traffic in human beings. In
pursuance of Article 23 the bonded labor system has also been abolished and declared illegal by
the bonded labor system (abolition) act, 1976. To ask a person to work against his will and not
provide him remuneration can be a breach under Article 23 of the Constitution. In no
circumstances can a man be required to work against is will.

ARTICLE 24 –PROHIBITION OF EMPLOYMENT OF CHILDREN IN FACTORIES -

According to this Article, No child below the age of fourteen shall be employed to work in any
factory or mine or engaged in any other hazardous employment. Hazardous conditions may
include construction work or railway. This article does not prohibit and harmless work. This
Article provides the regulation and prohibition of child labour in India. Child Labour is defined
as the work which deprives children of their childhood, potential and their dignity; it is
something which causes a threat to their physical and mental development. UNICEF estimates
India with such a high population has a high rate of child labourers. India, after its independence
from the colonial rule, has passed many constitutional protections and laws on child labour.

5. DIRECTIVE PRINCIPLES OF STATE POLICES

There have been many provisions in the Directive Principles of state policies which specify how
the state is responsible for the protection of rights of children.

ARTICLE-39 – Certain principles of the policy to be followed by the state. Article 39(e) states
that the health and strength of workers, men and women, and the tender age of children are not
forced by economic necessity to enter avocation unsuited to their age or strength. Child Labour is

8
one of the social evil that is forced by economic necessity; it is the responsibility of the state to
ensure that no child is subjected to any physical or mental abuse.

ARTICLE 39[1](f) states 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. This provision also
protects childhood and provides opportunities and facilities to grow with the safe explosion.

ARTICLE 45- This provision is for early childhood care and education children below the age
of six years. According to this provision, the State shall Endeavour to provide early childhood
care and education for all the children until they complete the age of six years, protect the child
and is responsible for the development within them and ensure the safe growing environment,
where their childhood can be experienced by themselves without any external threat. After that,
it is the responsibility of the state to provide them with free and compulsory education no matter
how the condition of the child is, even if they are not protected by their own parents or they are
denied with their rights by their own parents. The State has to take strict measures for the well
being of the child.

6. FUNDAMENTAL DUTIES- Fundamental duties refer to the basic obligations of a citizen in

India. It contains about 11 duties which are to be followed by the citizen of India. It is defined as
the moral obligation of all citizens to help promote a spirit of patriotism and to uphold the unity
of India.

ARTICLE-51A(k) -It shall be the duty of every citizen of India who is a parent or guardian to
provide opportunities to provide education for his child or, as the case may be, ward between the
age of six and fourteen years. Through this provision, the Constitution strictly mentions the
providing of education as the duty of the parent as it is for the future and development of the
country.

OTHER RIGHTS:

Children in India are also entitled to other rights

9
1. Right against discrimination (Article 15)

2. Right Protection against arrest and detention (Article 22).

3. Freedom of Conscience and practice of Religion (Article 25), Freedom to manage religious
affairs (Article 26).

4. Freedom of religious instruction (Article 28),

5. Protection of Rights of Minorities (Article 29).

6. The Right to move the Supreme Court for enforcement of rights (Article 32) popularly known
as Right to Constitutional Remedies.

7. Right of weaker sections of the people to be protected from social injustice and all forms of
exploitation (Article 46).

8. Right to nutrition and standard of living and improved public health (Article 47).

LAWS WHICH BIND PROTECTION OF CHILD IN INDIA

INDIAN PENAL CODE 1860

1. According to Section 82 of the Indian Penal Code, nothing is an offence which is an offence
done by a child under the age of seven years and Section 83 states that, nothing is an offence
which is done by a child above seven years of age and under twelve. As in this age, the children
will not attain the maturity to distinguish between what is right and what is wrong. The child
will not be aware of the consequences of his/her conduct. He is incapable of understanding good
and bad, which means he/she is totally Dole incapx.

2. Section 305 of the Indian Penal Code states the Abetment of Suicide if any person under the
age of eighteen years of age commits suicide and whoever abets them to does such an act shall
be punished under the punishments under the act.

3. Section 315 refers to Infanticide in the Indian Penal Code which comes in the category of
crimes against children. This Section of the Indian Penal Code provides punishment for the act of
killing an infant. Here, Section 316 of the Indian Penal Code states Foeticide, whoever does the
act of causing death of quick unborn child by act amounting to culpable homicide.

10
4. Section 317 states the exposure and Abandonment of a child under twelve years, by parent or
person having care of it. The exposure and abandonment by a father or mother of a child under
the age of 12 will be punished for the same.

5. Section 369 of the Indian penal code states the punishment of kidnapping a child under the
age of ten with an intention to steal from its person.

6. Section 366A of the Indian Penal Code states the punishment for the Procreation of minor
girls (for inducement to force or seduce, to illicit intercourse). This section provides the action
against the said crime to ensure the protection of the girl child in India.

7. Section 372 and 373 states the punishment for buying, selling or attain the possession of a
person under the age of eighteen at any age employed or used for the purpose of prostitution or
illicit intercourse with any person or for any unlawful purpose.

PROHIBITION OF CHILD MARRIAGE ACT 2006-The Government of India introduced

the Prohibition of Child Marriage Act 2006 after the repeat of the Child Marriage Restraint Act.
The main aim of this Act is to prevent child marriage. This Act ensures that child marriage is
completely eradicated from society. A child according to this Act is female who has not attained
the age of eighteen and a male who has not attained the age of twenty-one.

APPRENTICES ACT 1961- The main purpose of this Act was to prohibit the apprenticeship or
training of children under the age of 14 years and for other minors there require a contract
between the employer and the guardian. A person is qualified to be engaged in apprentice if he is
not less than fourteen years and satisfies such standard of education and physical fitness.

JUVENILE JUSTICE ACT 2015- This Law, brought in compliance of the Child Rights
Convention repealed the earlier Juvenile Justice Act of 1986. This Act was further amended in
2006 and 2010. This Act was again repealed in 2015, This Act provides a special approach to the
protection, treatment and development of children, this law mentions how a child should be
protected in a home, without a home, begging etc…Under section 15 of this Act special
provision had been made to tackle child offenders committing heinous offences under the age

11
group of 16-18 years. The way in which a child should be protected from all the external
threats.

THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT 1986 - This prohibits
the engagement of children in certain employment which is hazardous to the child who can affect
the child mentally and physically. It regulates the conditions of work of children in other
employment.

THE ORPHANAGES AND OTHER CHARITABLE HOMES (SUPERVISION AND

CONTROL) ACT 1960- This Act provides the supervision and control over the orphanages,
homes for the abandoned women and children.

THE GUARDIAN AND WARDS ACT 1890- This Act deals with the qualification,
appointment and removal of guardians of children by the courts and is applicable to all the
children irrespective of religion. When it comes to divorce there exists confusion about with
whom the child should go with. It is the wish of the child that the court consider first, there can
be influences on the child due to the factor of their age and hence after the pleading by both the
parties the court comes to a conclusion where the court ensures the protection of the child.

THE HINDU ADOPTION AND MAINTENANCE ACT 1956 - This Act generally dealt with
the provisions for a Hindu adult to adopt a child and the Hindu law of maintenance to wives,
parents and children.

PROBATION OF OFFENDERS ACT 1958- This law lays down the restrictions on the
imprisonment of offenders fewer than twenty-one years of age. This Act is in order to prevent
the conversion of young offenders to obstinate criminals. Since there are chances for their
transformation when they are subjected to jails along with criminals.

THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES (POCSO) ACT 2012 -

The POCSO Act, 2012 is a law to provide for the protection of children from the offences of
sexual assault, sexual harassment and pornography while safeguarding the interest of children in
every stage of the judicial process by incorporating child-friendly mechanisms. The Act provides
for Special courts that conduct the trial in-camera and without revealing the identity of the child.

12
 LANDMARK DECISION ON RIGHTS OF CHILDREN

Children by definition are unable to petition the court themselves, they have to rely on the
parents patria role of the state. The needs of the children were responded by the court through
public interest litigation, in the conditions where some improvement is significant like in
institutions, prisons, illegal confinements, treatment of mentally retarded children and
handicapped children, child labour, child marriage, adoption, juvenile justice, prevention
trafficking of young girls, the welfare of children of the prostitutes, prohibition of corporal
punishment in schools and sex-selection. There has been a decision made by the court on almost
all the matters which is related to a child. The court has seen the matters through the lens that all
the decisions made were concerned and made for the children all over the country.

M.C Mehta v. State of Tamil Nadu1- The judgment passed states the direction to prohibit child
labour in hazardous conditions; the petitioner was concerned about the high rate of child labour
in hazardous conditions in the Match factories of Savakis in Kamraj district of Tamil Nadu. The
judgment gave out the visions of the constitution and also linked between child labours with
poverty, the judgment also stated that there has been no proper eradication of child labour by the
state.

Sanjay Suri v. Delhi administration2- The court laid down orders to transfer some guilty
officers and laid down the rules to protect children in jails. Juvenile undertrials were the subject
of Sanjay Suri’s petition. Many children were sent to jail despite the prohibition in the children’s
Act. The Juvenile were kept together with habitual and other adults where they were brutalized
and made to do undesirable tasks,

Gaurav Jain v. Union of India 3- The Supreme Court held that segregating the children of
prostitutes would not be in their interest. The Supreme Court held that the children of the
prostitute have the right to equality of opportunity, dignity, care and protection and rehabitalised
so as to be a part of the mainstream of social life without any pre-stigma attached on them.

1
1991 AIR 417
2
1988 AIR 414
3
(1997) 8 SCC 414

13
Vishal Jeet v. Union of India4- Several directions were issued to end the sexual exploitation of
children. The court issued directions to the state government to set up rehabilitation homes for
the children found begging in the streets and also minor girls pushed into ‘flesh trade’ to
protective homes.

Sheela Barse v. the Secretary Children’s Aid Society & Ors 5- The petition was filed in public
interest with regard to improper functioning of childcare institution in Mumbai, The Supreme
Court directed that in no case should a child kept in jail and a central law must be enacted to
bring uniformity in the juvenile justice system.

Kishan Pattnayak v. State of Orissa 6- Poor people were forced to sell children to buy food.
The Orissa government was compelled to take several welfare actions. The petitioner wrote a
letter to the Supreme court of India bringing to the court’s notice the extreme poverty of the
Kalahandi in Orissa where hundreds of people were dying due to starvation as a result they were
forced to sell their children. This case has taken the issue of the lack of food and poverty. In this
judgment, the Supreme Court took significant steps in implementing irrigation projects in order
to reduce drought and certain measures were taken in order to ensure fair selling prices.

Sarita Sharma v. Sushil Sharma7- The court held that in the issue relating to custody of
children, paramount consideration should be given to the welfare of the children.

Unnikrishnan J.P &Ors v. State of Andhra Pradesh 8- The court held that the right to
education is implicit in the right to life. The Judgment on this case expanded the Right to
education being enshrined to Right to Life. In 2002, by the 86th Amendment of the Constitution
inserted Right to Education within Right to life.

4
1990 AIR 1412
5
1987 AIR 656
6
1989 AIR SC 677
7
[2000] 1 SCR 915
8
1993 AIR 217

14
SUGGESTIONS

Concerning the privacy of children, India should become more stringent in monitoring, enforcing
and adjudicating the legislations. It is undeniable that children in India face innumerable
problems and child rights violation are have increased manifold since time immemorial, the
reason being the unawareness for what rights are available to them and what is not. Apart from
the proper enforcement of the Act, that includes the establishment of proper authorities or courts
for the same, or any other necessary institution, a right call to provide incentives for the
economically backward sections is the need of the hour. Small scale movements by NGOs like
Child Rights and You(CRY), Smile Foundation and Make a Difference(MAD) and proper
budget allocation are some other significant steps towards the improvement of child rights in
India. Collaborating with other organisations to ensure proper record keeping and tracking
ensures that resources are allocated proportionately. The Media should cover the critical issues of
nutrition and recreation and other problems relating to child rights to reach to a broader audience.
Coordinating with civil societies and realisation of Corporate Social Responsibility(CSR) is
essential to fulfilling the Sustainable Development Goals(SDG). Even though there are
legislations in pursuance of protection of the rights of children, something in addition to
that(suggestions as mentioned above) need to be brought about for their realisation.

CONCLUSION

In spite of all these bits of the legal framework, there is still a scarcity which is prevailing, there
are still challenges to be faced both in present and in the future. There are many circumstances
where justice has been denied to the children, Social evils like child marriage and child labour
are still practised in society. The reason for child labour is of course nothing but poverty; there
are many instances where the sections in IPC have turned out to be vain. There are instances
where a child is being kidnapped, where he/she is being killed, physically mentally or sexually
abused, All these instances are still happening, it should also be taken into notice that all the
above said laws are for the eradication of these crimes in the society. The rate of crimes in the
society is still high in society. The law should strengthen its strictness and all the punishments
should instill fear in the mind of people. In India, we follow the reformative theory which aims
in the reformation of the criminals. As all these reformative efforts were of no use instead turned

15
out to be a threat. The Deterrent theory is that theory of punishment which obstructs the crimes
of wrongdoers and instills fear within them so that they act within the parameters of the law. This
theory of punishment should be followed in India.

REFRENCES:-

 Children’s Rights, Wikipedia, [Link]

 Children’s right under the Constitution,
LegalService, [Link]
 Fundamentals of children rights in India, available at
[Link]
 Legal framework for the protection of child rights, available at
[Link]
 Realising children’s right in India, available at [Link]
 M.P. Jain, Indian Constitutional Law 98 (Kamal Law House, Calcutta, 5th edn., 1998).
 J.N. PANDEY CONSTITUTIONAL LAW E-BOOK
 Statues Referred:

Indian Penal code 1860

Protection from Sexual Abuse (POCSO) Act 2012

Child Labour (Prohibition and Regulation) Act 1986

Juvenile Justice Act 2015

Constitution of India

16