File Copyright Online - File mutual Divorce in Delhi - Online Legal Advice - Lawyers in India

Analysis of Constitutional Provision Protecting Child Rights in India

Children will be responsible for protecting national sovereignty, the rule of law, justice, freedom, equality, fraternity, and world peace[1]. They have the capacity to become real representations of our highest values, aims, and expectations for the future. As brilliant thinkers, leaders, scientists, politicians, administrators, educators, and jurists, they represent the "future shoulders" on which the nation will be built. Several laws in India aim to change the country's attitude towards children from one of insignificance to one where they are protected from harm and given the chance to flourish by gaining equal exposure to resources like food, healthcare, and education.

To that end, this article will first provide a quick overview of who a child is and why the right to children is important, and then examine several constitutional articles that may be used to protect children's rights. Also, this article examines children's rights in the United States and India from a comparative perspective and intends to critically analyse the present state of children's rights and the constitutional protections that are provided to them. Finally, this article aims to offer a course of action for the future as a suggestion and recommendation followed by a conclusion to the topic.

In the broadest sense, any person who is under the age of 18 is regarded as a child. The nation's fate is seen as being in the hands of its children. The advancement of the nation depends critically on their growth. Several sectors have made significant progress in providing fundamental rights to children. Children are more vulnerable to exploitation and abuse; thus, they're discriminated against since society as a whole views them as a vulnerable subset deserving of heightened protections and a different set of guidelines.

Children in this category include those who work as labourers, who are evacuated because of conflicts, who are sexually violated, those who are in conflict with the law or in the care of the state, who live on the streets, who are disabled, and those who are members of religious or ethnic minorities.[2] It is the state's duty to care for its children and their growth.

Human Rights Instruments Concerning Children's Rights[3]:
The Declaration of the Rights of the Child[4], adopted by the League of Nations' fifth session in 1924, is the first global treaty protecting children's rights.

Children benefited from welfare initiatives. The notion of children's rights did not arise until the twentieth century. The rights concept focuses on concerns of social justice, non-discrimination, equality, and empowerment. In 1990, India took part in the UN General Assembly summit that endorsed the Declaration on the Survival, Protection, and Development of Children. On December 11, 1992, India consented to the UNCRC's protection of children's rights.

The preservation and development of children are critical for any nation's economic prosperity. India has the world's second-largest population, and children make up a substantial portion of that population. As a result, it is essential to guarantee that children's rights are safeguarded and encouraged. It is apparent that supporting children's rights is a government priority in India since it is incorporated in the constitution and protected by law. Notwithstanding this, children in India remain to confront barriers to achieving these rights, notably those linked to education, forced labour, and child marriage.

  1. Who is a child?
    According to international law, a ""child" is any human being under the age of 18. This is a globally recognized definition of a child, derived from the United Nations Convention on the Rights of the Child (UNCRC), an international legal instrument that many governments have approved and approved.

    In addition, India modified its juvenile justice laws in 1992 after the ratification of the UNCRC to guarantee that any individual under the age of 18 who need care and protection is entitled to receive it from the State." Some laws, on the other hand, define a child in other ways and have not yet been updated to comply with the UNCRC. Yet, as was already said, the legal definition of maturity is 18 for girls and 21 for boys.
  2. Why protecting the right of children is important?
    Children's rights need to be protected for several reasons. Firstly, children are weak members of society who may not have the skills, knowledge, or resources to safeguard their personal interests and welfare. To ensure their security, well-being, and general development, their rights must be maintained.

    Second, safeguarding the rights of children is crucial since it enables them to reach their full potential. Children have a right to receive healthcare, education, and other essentials for their well-being. Children are more likely to succeed in life and develop into engaged, productive members of society whenever these rights are upheld.

    Subsequently, safeguarding children's rights is essential because it fosters social and economic growth. Children are more inclined to benefit their communities and the overall economy when they are healthy, educated, and empowered. This may then result in more wealth and well-being for everyone.

    Lastly, it is important to uphold children's rights because doing so is morally required. Children have some basic rights just by virtue of being humans. These rights include the right to life, the right to be protected, and the right to participate in decisions that affect their lives.

    Ultimately, children's rights are vital because they assure their safety, allow them to maximize their abilities, encourage social and economic growth, and are a moral necessity. Governments, parents, and other adults are accountable for protecting the rights of children preserved and safeguarded.
  3. Analysis of Constitutional Provision Protecting Child Rights in India
    The Indian Constitution includes provisions for children's rights such as the right to free and compulsory education, protection against exploitation, the right to health and nutrition, protection against abuse and neglect, the right to participate, and the right to protection and rehabilitation. In accordance with the articles of the Constitution's Part III, which addresses fundamental rights, children are also provided certain rights.

Article 14- Right to Equality[5]
The state must provide equality before the law and equal protection of the law for all citizens. All Indian citizens, including children, have the right to equality, free of discrimination and arbitrariness. Children are small and fragile, making them easily abused or disregarded. According to this article, they are treated in the same manner as any other citizen under the law and are entitled to the exact same legal protection.

Supreme Court in Gaurav Jain v/s Union of India[6] decided that it's not in the children's best interests to keep them isolated from other children if they have a parent who works in the prostitution industry. It asserted that the children of prostitute mother's ought to have the identical right to equal opportunity and to enjoy respect, protection, and security. They deserve to live a normal, accepted life free from prejudice and discrimination.

Article 15(3)- Right against Discrimination[7]
In order to preserve and secure the interests and well-being of children, the Constitution-makers added Article 15(3), which states that the State shouldn't be hindered from creating and implementing any specific provision for women and children. This is referring to provisions that benefit them and provide them with the additional protection that they need. These will be regarded not as bias but as Positive Discrimination.

Article 21- Right to Personal Liberty and Due Process of Law[8]
A citizen's right to life, personal freedom, and due process of law can't be violated. A child has a right to sufficient accommodation and food. The Constitution acknowledges the critical necessity of proper nutrition and health for children and integrates it into this article.

Supreme Court in Kishan Pattnayak v/s State of Orissa[9] instructed the government to take substantial action to address drought and poverty when the petitioner brought a writ petition highlighting the appalling poverty in Kalahandi, Orissa, wherein numerous individuals, including children, perished from starvation. A few were obliged to trade their children in order to buy bread. This incident has shed light on the issues of child poverty and starvation.

Article 21 A- Right to Education[10]
All children between the ages of 6 and 14 are required by the State to get a free and compulsory education. The Constitution's 86th Amendment Act of 2002[11], which placed this article into the constitution, requires every state to offer free and compulsory education to all children between the ages of 6 and 14, establishing education as a basic right protected by Part III of the Constitution. This amendment is a significant step toward the nation's goal of achieving education for all.

It was contested in Mohini Jain v/s State of Karnataka[12] 1992 and Unnikrishnan v/s State of Andhra Pradesh[13] 1993 that it is essential that the right to education be protected and should be a fundamental right. The Directive Principles of State Policy[14] mentioned the right to education as a non-enforceable right up to that point.

The five-judge panel largely concurred with the Mohini case ruling and determined that the right to education is a fundamental right under Article 21[15] of the Indian Constitution. The court partially reversed Mohini Jain's order and said that the right to free and compulsory education is exclusively accessible to children until they reach 14 years of age, after which the State's obligation to provide education is according to its financial ability. Hence, Supreme Court made the right to education a Fundamental right with the 86th Amendment Act 2002.

Article 23- Prohibition of Traffic in Human Beings and Forced Labour[16]
Humans cannot be subjected to human trafficking or forced labour. This article prohibits child trafficking, which has led to a rise in child begging, sexual exploitation, and forced bonded labour in our society.

The court in Vishal Jeet v/s Union of India[17] ordered to stop the sexual exploitation of children. It mandated the establishment of rehabilitation centres for children who were victims of sexual exploitation, beggars on the streets, and young girls who were pushed into prostitution.

Supreme Court in U.P. Bandhua Mukti Morcha v/s Union of India[18] stated that Article 23 of the Indian Constitution will be violated if the State fails to act in accordance with the Bonded Labour System Act of 1976.

Article 24- Prohibition of Employment of Children in Factories etc.[19]
This article makes child labour prohibited. Children under the age of 14 cannot be engaged in factories, mines, or other dangerous occupations. Child labour is defined as any profession that robs a child of their childhood and harms their physical and emotional health. The employment that is insignificant or menial is not forbidden. Construction labour, railroads, and making matchboxes or fireworks are all dangerous employment.

In People's Union for Democratic Rights v/s Union of India[20] 1983 the petitioner witnessed the working circumstances of laborers engaged in numerous Asiad projects. Children under the age of fourteen were found to be working. Nonetheless, it was asserted that the Employment of Children Act of 1938[21] did not apply to such work because the construction business was not really listed as a hazardous occupation.

The Court found construction activity dangerous. Although the Employment of Children Act 1938[22] does not officially prohibit it, children below 14 years cannot work in construction. The Court further ordered the state government to add construction industries to the list of hazardous work through an amendment to the schedule.

Children are also granted some rights under Part IV[23] of the Constitution, which covers the Directive Principles of State Policy[24].

Article 39(e)[25]
The State promises in this article that for the sake of money, no one should engage in endeavours that are above their physical or mental capabilities, and that the health and power of elderly men, women, and children must not be abused. Due to economic necessity, young children are subjected to child labour, making it one of these harmful practices.

Article 39(f)[26]
The State shall guarantee that it adopts laws and regulations that will provide children with the resources and possibilities necessary for their healthy, free, and dignified development. Moreover, it should safeguard them against exploitation and financial and moral abandonment throughout their formative years.

Article 45[27]
The State is committed to implementing universal, free, and mandatory schooling for every child under the age of fourteen within 10 years. This article was developed to ensure that the State would oversee the child's growth and their free and compulsory education until they are fourteen years old, even if the child is not safeguarded through their respective parent or is parentless. This goal has not been accomplished since the Constitution was first drafted more than 50 years ago.

In M.C. Mehta v/s State of Tamil Nadu[28] 1991, the Supreme Court stated that the requirements of Art. 45[29] remain far ahead because grown children have to do struggle to work to support their families, all children up to the age of 14 should get public funding to attend school.

Article 46[30]
The state has an obligation to foster the educational and economic interests of society's weakest segments, particularly children, in addition to protecting them from any social unfairness and exploitations.

Article 47[31]
The state has a duty to enhance residents' living standards, nutrition, and public health, especially children.

A person has the ability to seek constitutional redress under Article 32 and 226 writs jurisdiction if they believe that any of their fundamental rights have been infringed.

Article 32[32]
If an individual perceives that any of his fundamental rights have been violated, they have the right to file a petition with the Supreme Court in order to obtain redress.

Article 226[33]
An individual can seek protection for his rights in the High Court, even though such rights are not necessarily fundamental.

As children cannot contest the judicial process by themselves, the best way to address their concerns is through Public Interest Litigation, which may be brought by an NGO or a public-spirited person against the State Government or the Central Government in accordance with Articles 32 and 226 of the Constitution. This helps to ensure that children's rights are upheld and respected.

Loopholes in fulfilling children's rights under the Indian constitution
Although the Indian Constitution has various provisions that safeguard children's rights, its implementation has often fallen short of expectations. The Indian Constitution's articles that provide children's rights have a set of implementation issues.

A few of these omissions include:
  • Absence of Knowledge:
    It may be challenging for many children and their families to obtain and get the protections and services to which they are legally entitled because they are unaware of their legal rights.
  • Inadequate implementation:
    Lack of political will, insufficient funding, and corruption often contribute to the poor implementation of laws and policies pertaining to children's rights. As a result, children are not adequately protected from abuse, exploitation, and neglect.
  • Poverty:
    The implementation of children's rights, notably the rights to education and health, is significantly hindered by poverty. Since they often have to leave school and do labor to sustain their families, children from underprivileged areas are more likely to be exploited and abused.
  • Lack of suitable infrastructure:
    Facilities for child protection services, such as shelters, rehabilitation infrastructure, and counseling services, are lacking. This makes it challenging to help and protect the welfare of children who are in need.
  • Social and cultural barriers:
    Social and cultural norms may make it difficult for children's rights to be upheld. For instance, although being against the law, child marriage is nonetheless common in certain areas of the nation. Similarly, prejudice against certain groups of children, such as Dalits, and tribal kids, continues to be a big problem.
  • Insufficient surveillance and accountability:
    There are not enough procedures in place to keep an eye on how well children's rights laws and policies are being carried out. As a result, individuals who abuse the rights of children go unpunished and without repercussions.
  • Slow justice system:
    The resolution of issues involving children's rights might take many years in India's delayed judicial system. Justice for children who have been abused or exploited is being delayed as a result.
Even though the Indian Constitution has several measures to safeguard children's rights, these provisions have not been well implemented. The Indian Constitution's articles that provide children's rights have several implementation issues. To close these gaps and guarantee the protection of children's rights and their well-being, political will, better finance, and more effective accountability systems are needed.

Comparative study and critical analysis
Comparative study of the rights available to children in India and the United States
Children are seen as a vulnerable group in society that needs extra safeguarding and attention in both India and the United States. Both nations' constitutions include provisions for the welfare of children, including those pertaining to education, protections against exploitation, access to healthcare, and involvement in decision-making.

The formulation and application of these rights differ somewhat, nevertheless. The protections for children's rights that exist in India and the United States will be compared in this comparative study.

India has taken strong measures to address the problem of child labour in compliance with international rules, including ratifying all the treaties, forming a new review panel to execute the laws, and enhancing the efficiency of administrators and police officers. Yet, except from a few provisions that were already contained in its legislation, the United States has not made any substantial attempts in this domain. It is very disturbing and troubling that children in the United States are partaking in the worst type of child labour that currently exists.[34]

In both India and the United States, agriculture is one of the most common occupations for children. The problem is getting more severe in the United States, despite the fact that the government and courts in India have taken measures to safeguard children from this kind of abuse. It is true that the United States has legislation meant to protect children from working too many hours, but the way it's written, the law effectively allows children to squeeze in as much time as they like. [35]

In India, the Constitution guarantees equality before the law and prohibits discrimination on grounds of religion, race, caste, sex, or place of birth[36], as per Article 15. Additionally, the Constitution provides for preferences for the economically and academically disadvantaged, such as the Scheduled Castes and the Scheduled Tribes, are included in the Constitution[37], as per Article 15(4) and Article 16(4)[38]. These provisions ensure that children belonging to marginalized and disadvantaged communities have equal access to education, employment, and other opportunities.

In the US, the Constitution guarantees equal protection under the law for all citizens, including children, as per the 14th Amendment. However, the Constitution does not provide for special provisions for the advancement of socially and economically backward classes or for specific groups of children. Therefore, the US Constitution may not be able to ensure that children from marginalized communities have equal access to education, healthcare, and other basic rights.

Furthermore, Article 21 of the Indian Constitution declares the right to health to be a fundamental right. The government has established several programs for children's health and welfare, including the Integrated Child Development Services (ICDS) program. Although the US has passed several federal legislations, such as the Children's Health Insurance Program and the Affordable Care Act[39], to guarantee access to healthcare for all children, the US Constitution does not specifically mention the right to health.

Lastly, the Constitution of India acknowledges the significance of children's input in decision-making. The Juvenile Justice Act of 2000[40] and Article 15(3) both allow children to take part in decision-making. Contrarily, although the 26th Amendment to the US Constitution guarantees the right to vote to all US residents above the age of 18, it makes no mention of children's involvement in decision-making.

Although the US has passed a lot of federal laws to provide access to healthcare, education, and protection from exploitation and abuse, these regulations fall short of the Indian Constitution's protections in terms of scope and coverage. In comparison to the US Constitution, India's Constitution offers more protection and welfare provisions for children.

Critical analysis the provisions available to children's rights in Indian constitution
The Indian Constitution has a massive variety of articles pertaining to children's rights. The Constitution aims to advance the well-being and development of children, acknowledging their vulnerability and the need for protection and care. The following is a critical examination of some parts of the Indian constitution that deals with children as a right and how they are implemented:

The right to education is one of the most important clauses in the Indian constitution for children's rights. Art 21A guarantees the right to an education to all the children aged 6 to 14. The Right to Education Act of 2009 established free and compulsory education as a fundamental right for all children of this age. However, there are significant obstacles to executing this rule. Due to poverty, a lack of infrastructure, and other issues, many children, especially those from marginalised areas, continue to lack access to school. Education quality is also an issue, with many schools missing basic facilities and skilled instructors.

The digital divide, worsened by COVID 19 epidemic, has emphasized the disparity in educational access between rich and impoverished children. Another important element in the Indian constitution for child rights is protection against exploitation. Art 24 forbids the employment of minors aged 6 and 14 in dangerous jobs. The Child Labor (Prohibition and Regulation) Act of 1986, as well as Juvenile Justice Act of 2000, protect children against exploitation and abuse.

Despite these rules, child work and exploitation are still prevalent, in many regions of the nation. According to a recent International Labour Organization research, India still has an estimated 10 million child employees. Children from marginalised populations, such as those from tiny villages, are especially susceptible to exploitation.

Children are also protected from abuse and exploitation by the Indian Constitution. Article 15(3) empowers the state to adopt particular arrangements for children, such as safeguards against abuse and exploitation. The 2012 Protection of Children from Sexual Offenses Act (POCSO) protects children against sexual abuse and exploitation. However, putting these rules into effect remains a struggle.

According to statistics from the National Crime Records Bureau (NCRB), crimes against minors have been on the increase in recent years. Concerns have also been raised concerning the low conviction rates for crimes against children under age.

The right to health is another essential provision in the Indian Constitution for children's rights. Article 21 recognises the right to health as a basic right. The government has put in place a number of programmes to enhance the health and well-being of children, notably the Integrated Child Development Services (ICDS) programme.

However, there are considerable barriers to the adoption of these systems. Healthcare facility availability varies greatly between urban and rural areas. Malnutrition and infant mortality remain common in many parts of the country, particularly in rural and underdeveloped areas. The COVID-19 outbreak has highlighted the critical need for enhanced healthcare facilities and services, particularly for children.

Finally, the Indian Constitution affirms children's right to participate in affairs affecting them. Children are allowed to participate in decision-making processes under Article 15(3) and the Juvenile Justice Act of 2000[41]. Children's engagement in decision-making processes, however, remains restricted. Children's voices are often ignored, especially when it comes to problems involving their well-being. Concerns have also been raised about the lack of representation of children in political and social institutions.

Suggestions or Recommendations
Children are susceptible owing to their immature minds. It is essential to provide an atmosphere conducive to their growth and development. To facilitate easy implementation, below are some recommendations for the prospective pathway of children's rights in the Indian Constitution:
  • Create an independent commission for children's rights:
    This commission may oversee monitoring the implementation of laws and policies pertaining to children's rights and holding those who violate such rights accountably. It may also make recommendations to the government on children's rights problems.
  • Enhance the National Commission for the Protection of Children's Rights (NCPCR):
    The NCPCR should be granted additional authority and resources to guarantee that it can carry out its mission of safeguarding and promoting children's rights effectively.
  • Raise awareness and advocacy:
    The government should launch campaigns and initiatives to educate parents, guardians, and communities about children's rights. This may aid in ensuring that children's rights are known and respected.
  • Enact comprehensive child protection legislation:
    The government should adopt comprehensive child protection laws to safeguard children from all sorts of abuse and exploitation, including sexual abuse, child labour, and trafficking. The laws must be adequately applied and enforced, and those who commit such offenses must be punished.
  • Provide particular arrangements for disabled children:
    The government should make specific provisions for disabled children, such as education, healthcare, and protection. This includes making schools and other public places accessible to children with impairments.
  • Children from disadvantaged groups should be prioritized:
    The government should prioritize the welfare of children from marginalized communities, such as Scheduled Castes, Scheduled Tribes, and Other Backward Classes. Affirmative action initiatives and targeted interventions may be used to guarantee that children from these communities have equitable access to education, healthcare, and other fundamental rights.
  • Increase child participation:
    Participation of children in choices that influence their life is important for their overall development and empowerment. The government should enhance methods for child engagement, such as establishing children's councils and assuring that children are involved in policymaking.

The Indian Constitution has many articles to safeguard children's rights. These articles highlight the significance of protecting children from exploitation, abuse, and neglect, as well as providing them with basic requirements like as education and healthcare. The basic value of these rights resides in ensuring that children grow and develop to their full potential in a healthy and safe environment.

Nevertheless, these regulations have not been implemented completely. There are many gaps in the system that make it possible for continuous child exploitation and abuse, and the absence of efficient enforcement measures means that many children are denied their fundamental rights.

A comparison of child rights in India and the United States finds that, although both nations have identical constitutional provisions safeguarding children's rights, the United States has a stronger framework for implementing these protections. In the United States, the courts play an important role in upholding children's rights, but in India, effective enforcement mechanisms are lacking.

A critical examination of the provisions accessible as children's rights under the Indian Constitution reveals that, although there are several provisions for preserving children's rights, more effective enforcement mechanisms are required. Additionally, there is a need for the greater public education and an understanding of the need of protecting children's right. At the end of the day, even while the Indian Constitution provides a strong foundation for protecting children's rights, more is needed to ensure that these provisions are effectively put into practise and upheld. Then and only then will we be able to really create a safe and healthy atmosphere where all children may flourish and rich their full potential.

  1. Dr. Ram Pravesh Yadav, "Agricultural Diversification and Agro Climatic Zone of Bihar," 9 IJRSS 271 (2019)
  2. Dr. Ram Pravesh Yadav, "Agricultural Diversification and Agro Climatic Zone of Bihar" 9 International Journal of Research in Social Sciences 271 (2019)
  3. UN Commission on Human Rights, Convention on the Rights of the Child, E/CN.4/RES/1990/74 (1990)
  4. UN General Assembly, Declaration of the Rights of the Child, A/RES/1386(XIV), (20 November 1959)
  5. The Constitution of India, art. 14.
  6. AIR 1997 SC 3021
  7. The Constitution of India, art. 15. cl. 3.
  8. The Constitution of India, art. 21.
  9. 1989 AIR 677, 1989 SCR (1) 57
  10. The Constitution of India, art. 21A.
  11. The Constitution (Eighty-sixth Amendment) Act (2002)
  12. (1992) 3 SCC 666
  13. (1993) 1 SCC 645
  14. The Constitution of India
  15. The Constitution of India, art. 21.
  16. The Constitution of India, art. 23.
  17. 1990 AIR 1412, 1990 SCR (2) 861
  18. (AIR 1984 SC 802)
  19. The Constitution of India, art. 24.
  20. 982 AIR 1473, 1983 SCR (1) 456
  21. Employment of Children Act, 1938 (Act 026 of 1938)
  22. Employment of Children Act, 1938 (Act 026 of 1938)
  23. The Constitution of India
  24. The Constitution of India
  25. The Constitution of India, art. 39.
  26. The Constitution of India, art. 39.
  27. The Constitution of India, art. 45.
  28. 1991 SCR (1) 866, 1991 SCC (2) 353
  29. The Constitution of India, art. 45.
  30. The Constitution of India, art. 46.
  31. The Constitution of India, art. 47.
  32. The Constitution of India, art. 32.
  33. The Constitution of India, art. 226.
  34. Jerin Mathew R, "Child Labour � A Compoundable Offence?" 24 Jus Corpus Law Journal 528 (2022)
  35. Asha Bajpai, Child Right in India 148 (OUP India, New Delhi, 3rd ed, 2017)
  36. The Constitution of India, art. 15.
  37. The Constitution of India, art. 15. cl. 4.
  38. The Constitution of India, art 16. cl. 4.
  39. Patient Protection and Affordable Care Act, 2010
  40. The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of 2000)
  41. The Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of 2000)

Law Article in India

Ask A Lawyers

You May Like

Legal Question & Answers

Lawyers in India - Search By City

Copyright Filing
Online Copyright Registration


How To File For Mutual Divorce In Delhi


How To File For Mutual Divorce In Delhi Mutual Consent Divorce is the Simplest Way to Obtain a D...

Increased Age For Girls Marriage


It is hoped that the Prohibition of Child Marriage (Amendment) Bill, 2021, which intends to inc...

Facade of Social Media


One may very easily get absorbed in the lives of others as one scrolls through a Facebook news ...

Section 482 CrPc - Quashing Of FIR: Guid...


The Inherent power under Section 482 in The Code Of Criminal Procedure, 1973 (37th Chapter of t...

The Uniform Civil Code (UCC) in India: A...


The Uniform Civil Code (UCC) is a concept that proposes the unification of personal laws across...

Role Of Artificial Intelligence In Legal...


Artificial intelligence (AI) is revolutionizing various sectors of the economy, and the legal i...

Lawyers Registration
Lawyers Membership - Get Clients Online

File caveat In Supreme Court Instantly