Child Rights and Constitutionalism

A. INTRODUCTION:

“Children are not things to be moulded but are people to be unfolded.”

– Jess Lair (former Montana State University professor, Bozeman, USA)

Proper care is always necessary to unwrap beauty behind every childhood activity. Child is not an object to be treated vehemently without any consent of that child. Child is a separate and individual human being holding rights equally as that of adult person unless restricted by law.

There is no specific definition of Child in the Indian law. All treaties of international human rights apply to children. Article 1 of Universal Declaration of Human Rights (UDHR) establishes the framework of childhood.

Children's rights is always most important topic for debate. In the past Child abuse was observed like child - sexual abuse, marriage, underfeeding, verbal abuse, batteries, prostitution, pornography and labour. Now, children are facing major issues like poverty, malnutrition, lack of proper healthcare or school or nutrition issues due to weak provisions on direct benefits.

Children, as not a whole political entity, are not getting political support. Typically, they are defenseless physically, psychologically and economically. Even in this fast-changing era of globalization, childcare didn’t get proper attention. A very selective and parochial approach was taken to placing them on the social and political agenda.

B.LEGAL DEFINATION OF A CHILD:

In the Indian Constitution, the term "child" is not defined.

Article 1 of the 1989 Convention on the Rights of the Child (United Nations) says that a child shall mean every person under the age of eighteen unless the majority is earlier, according to the law applicable to the child.

The Indian Majority Act of 1875 provides the age of a majority to be 18 years old and for a minor whose person / ownership is appointed a guardian or whose property, in the majority of 21 years, is under the supervision of the Court of Wards.

Under the Child Labour Act of 1986, the child shall mean an individual who was not 14 years old.

The Child Marriage Restraint Act of 1926 applies to a person who is not 21 years of age if a male, and not 18 years of age in case of a female.

According to the Juvenile Justice Act, 2000 a juvenile or a child means a person not 18 years old.

C.RIGHTS OF A CHILD:

Government have taken several initiatives to eradicate poverty but major portion of the population continues living in poverty. Economic inequalities are widespread, and children are most affected. Types of key rights for children can be as follows:

Right to life, health, safe water, food, education, protection, freedom and identity.

Children are one of the most vulnerable sections of any society. Violation of the children’s rights is a complex process. Generally, rights violation is not understood by children and crimes against them are either less reported or not at all.

a)Provisions of United Nations Convention on the Rights of the Child (UNCRC):

1)Key Articles of Protection, Promotion, and Participation:

Rights of Protection: Keeping Safe from Harm

i.Article 6- Right to life

ii.Article 9- Right not to be separated from parents

iii.Article 19- Right to be protected from all forms of abuse

iv.Article 20- Right to special attention

v.Article 32- Right to be protected from economic exploitation

vi.Article 33- Right to be protected from illicit drugs

vii.Article 34- Right to be protected from all forms of sexual exploitation

2)Rights of Promotion: Life, Survival, and Development to Full Potential

i.Article 24- Right to the highest standard of health care

ii.Article 27- Right to a standard of living

3)Rights of Participation: Having an Active Voice

i.Articles 7, 8- Right to an identity.

ii.Articles 12, 13- Right to express views freely and to be listened to

iii.Articles 17- Right to access to information

iv.Articles 23- Right for children with disabilities to enjoy life and participate actively in society

b) Indian Constitutional Provisions Relating to Protection and Welfare of Children:

1) Fundamental Rights

i.Article 14– Right to Equality

ii.Article 15(3)– Rights Against Discrimination

iii.Article 21– Right to Life & Personal Liberty and Due Process of Law.

iv.Article 21-A– Right to (free and compulsory) Education (till 14 years age).

v.Article 23– Prohibition of Traffic in Human Beings and Forced Labour Sexual Exploitation of Children

vi.Article 24– Prohibition of Employment of Children in Factories, Hazardous Jobs, etc. apart from menial and small jobs.

2) Directive Principles of State Policies for States

i.Article 39(e)– no abuse & engagement in activities not suitable to their age.

ii.Article 39(f)– ensure securing opportunities and facilities for children and protect them from exploitation and moral & material abandonment.

iii.Article 45– free and compulsory education (till 14 years age).

iv.Article 46– nurture educational and economic interests of the weaker and protection from social injustices and exploitation.

v.Article 47– obligation to improve standard of living, level of nutrition and public health for citizens.

3)Fundamental Duties- Article 51 A(k)– Duty of every citizen, to provide education for his/ her child (till 14 years age).

4)Constitutional Remedies- Article 32 (Supreme Court) and 226 (High Court) Writs jurisdiction– for infringement of above rights.

c) Few Indian Law for the Violations of the Child Rights:

1.The Factories Act of 1948 amended as Child Labour Act 1986 (additionally defines adolescent - aged between 15th and 18th years) amended in 2006 and then to Child Labour (Prohibition and Regulation) Act 2016.

2.Immoral Traffic Prevention Act, 1986.

3.The Child Marriage Prohibition Act of 2006.

4.The Right of Children to Compulsory and Free Education Act of 2009.

5.The Juvenile Justice Act of 1986, amended in 2000, 2006, 2011 and finally the Juvenile Justice (Care and Protection of Children) Act, 2015.

6.Protection of children from Sexual offences Act 2012. (POSCO)

D.MAJOR ISSUES ABOUT CHILDREN RIGHTS IN INDIAN PROSPECTIVE:

Violations of children's rights are not often intended. Lack of resources is appearing as a main reason. India is a lower-middle-income country with the second largest population in the world which made it hard for Government to reach every family. The major lacuna is observed in healthcare and education of child.

A) Healthcare –

Despite a fast-growing economy and the largest anti-malnutrition programme, India has the world’s worst level of child malnutrition. Half of the children under age 3 years are underweight and a third of wealthiest children are over-nutrient. One of the major causes for malnutrition in India is economic inequality. The reduction of poverty and malnutrition would have a major impact on child mortality throughout India. This is illustrated by the example of Kerala, which has successfully reduced poverty and malnutrition, and has the lowest child mortality rates in India.

Table 1: Healthcare Regional variations (2005-06) National Family Health Survey-3

*Mortality rates = deaths / 1000 births.

Further, as per the WHO 2015 data, Child mortality in India reduced over the decade (1 in 5 deaths in children under 5 years’ age worldwide occurs in India). Child mortality rates in India (52.7%) are higher than in neighbouring Bangladesh (41.1%) and Nepal (39.7%), both of which are poorer (Gross National Product per capita at international dollar rate - India - 5350, Bangladesh - 41.1 & Nepal - 39.7) and have fewer doctors per 10,000 population (India - 7, Bangladesh - 3.6 & Nepal - 2). India failed to achieve its millennium development goal targets for child mortality till 2015.

However, as per Sample Registration System (SRS) Statistical Report 2020 (22/09/2022), there is progressive reduction in IMR, U5MR and NMR since 2014 towards achieving the Sustainable Development Goals (SDG) targets by 2030.

B) Education –

As per the analysis of Periodic Labour Force Survey (PLFS) and the Unified District Information System for Education (UDISE) (2018-19), there are nearly 1.2 lakh single-teacher schools in the country of which an overwhelming 89% are in rural areas. Lack of Digital Infrastructure means overall availability of desktops or laptops in schools is 22% for all India, with rural areas (18%) than urban areas (43%) and internet in schools is 19% all over India - only 14% in rural areas compared to 42% in urban areas. As per BBC report (10 May 2022), almost third of 5-8 years old do not have access to a smartphone to help with their learning at home. During the Covid pandemic children from poor families faced maximum impact while schools were closed.

However, now the significant progress has been shown by the Indian Education sector related to e-learning. As per Unified Digital Information on School Education (UDISE) report, various facilities are improved like Electricity Facility improved from 80.2 % to 86.6 % from 2019-20 to 2021-22. Similarly for same period, Internet Facility improved from 22.3 % to 33.9 % & Computer Facility improved from 39% to 44.9%. Means, stronger measures are taken by the Government but the target is yet to achieve.

E.POLITICAL UNWILLINGNESS FOR CHILDREN ISSUES:

A classic example of People’s Voice for Child Rights - Telangana State (PVCR- TS), working for child rights from each district of the Telangana State, wherein it had submitted a list of child-specific demands to BJP, BRS, and Congress, the three major political parties of Telangana in (as per New Indian Express newspaper dated 28 November 2023). No tangible response or inclusion in political manifestos was done by any of them though 35% of the population in Telangana belongs to 0-18-year-old children. Ironically, it’s better to give voting rights to children, as it seems like the only solution to make political parties address the concerns of children.

There are a range of laws in India and policy measures to protect the interests of children. It reveals that support for children's rights is still not achieved in India due to such political averseness.

Though the constitutional provisions, legislations, and policy of the state prevailing in India for the enforcement of children’s right are strong enough, necessity of Constitutionalism is imminent to control Political averseness.

F.REMEDIES ON POLITICAL AVERSENESS - CONSTITUTIONALISM:

The Supreme Court, in Rameshwar Prasad v. Union of India, has conceptualized constitutionalism as, “The constitutionalism or constitutional system of Government abhors absolutism – it is premised on the Rule of Law in which subjective satisfaction is substituted by objectivity provided by the provisions of the Constitution itself.”

The Court, in IR Coehlo v. State of Tamil Nadu, held that Constitutionalism is a legal principle which requires control over the exercise of governmental power to ensure no destruction of the democratic principles on which the government is formed. In Minerva Mills case, Chandrachud, CJ, observed, – “The Constitution is a precious heritage and, therefore, you cannot destroy its identity”.

Principles of Constitutionalism means amalgamation of following principles:

1.Separation of Powers– (governance divided in Legislature, Executive and the Judiciary) to prevent monopolization of power and creates system of checks and balances.

2.Responsible and Accountable Government– electors right to demand answers from their government or revoke government’s powers by voting oppositors.

3.Popular Sovereignty– means government derives its legitimacy and authority from the people.

4.Rule of Law– Government belong to the laws, not to men. Essential components (by Dicey):

a.Except for a specific breach of established law, nobody should be punished.

b.Law is above everyone.

c.Courts’ vital role to protect individual’s rights and freedoms.

5.Independent Judiciary (Article 50)– essence of any liberal democracy and free society. If it is not independent, entire rule of law will be in jeopardy.

6.Individual Rights (Part III of the Constitution)– highest pedestal for constitutionalism and enforcement of these rights is ensured by the Constitutional Courts i.e. the Supreme Court and the High Courts.

7.Civilian control of the military– control of the military in the hands of a civilian government.

8.Police Accountability– police while performing its duties shall uphold the rights, freedoms and dignity of the individuals.

Constitutionalism is a mechanism that provides legitimacy to a democratic government. Constitutionalism is far more important than having a written Constitution.

The Constitution of India with the aid of various legislations has developed detailed and robust mechanism for administrative procedures on smooth functioning of the machinery of governance.

However, due to a variety of factors, the distance between the government and the governed has been growing with every passing year. The rich are getting richer and the poor are getting poorer. Therefore, effective constitutionalism is required which will bring up through educational reforms. Making people aware of their rights will further strengthen constitutionalism. Then, with the political will, protection of children’s right will become easy.

G.THE WAY FORWARD:

The Government initiatives in Healthcare like Ayushman Bharat Yojana, National Health Protection Scheme, Central Government health scheme, National AYUSH Mission, Rashtriya Swasthya Bima Yojana, Senior Citizen Health Insurance Scheme, etc. are really helpful for improving life for common people.

Further, the Government initiatives in education sector is also remarkable like for Students- National Education Policy (NEP) 2020 or STARS Project or Kala Utsav or for schools -Mid-Day meal or Sarva Shiksha Abhiyan or for Digital Education PM E-Vidhya, DIKSHA or for Girls- Beti Bachao, Beti Padhao, PRAGATI or for disabled students- SAKSHAM or for school teachers- NISHTHA or for mental health of students- Tele MANAS etc.

The only necessity is to bring back political will to effective implementation of such schemes. Strengthening constitutionalism by increasing system of checks and balances over the Governments and Political parties will reduce criminalisation and influence of money power into the corridors of politics. With the present computer world, it is now coming under control. This will ultimately benefit the weaker section of society and will boost required support for children too. The commitment from all members of the society is necessary for welfare of child and then child can bring prosperity for the nation.

“Children re-invent your world for you.” – American actress Susan Sarandon

H.References:

1.Ministry of Health and Family Welfare, Government of India (23 September 2022): India achieves significant landmarks in reduction of Child Mortality. (Posted by PIB Delhi) https://pib.gov.in/PressReleasePage.aspx?PRID=1861710

2.Department of School Education & Literacy Statistics Division, New Delhi (2018): Educational Statistics at A Glance (Ministry of Human Resource Development, Government of India) https://www.education.gov.in/sites/upload_files/mhrd/files/statistics-new/ESAG-2018.pdf

3.Orbi Health Private Limited Company, Karnataka (own and operate eka.care): (21 July 2023) List of Government Health Schemes in India. https://www.eka.care/services/list-of-government-health-schemes-in-india

4.Agarwal, T. (9 October 2023): List of Government Initiatives and Schemes for the Students, Teachers, and School. Jagranjosh. https://www.jagranjosh.com/articles/list-of-educational-government-schemes-for-students-teachers-and-schools-1690534298-1

5.Byju’s. (2024) Constitutionalism - UPSC Notes https://byjus.com/free-ias-prep/constitutionalism-upsc-notes/

6.Verma, M (20 February 2021) Constitutional Provisions Relating to Protection and Welfare of Children. Law Corner. https://lawcorner.in/constitutional-provisions-relating-to-protection-and-welfare-of-children/

- Writer Mr. Sadanand Chandrakant Dhikale holds LL.B degree