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Children Rights And Legal Framework For Their Protection Under The Constitution

The Indian Constitution is an excellent document for the protection of citizens’ rights and their interests, and the children are no exception. Our Constitution has always tried its best to protect children's interests right from the Preamble, Fundamental Rights, and the current judicial activism, but 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.

Justice, equal rights, freedom, and fundamental rights are constitutional provisions that have ended in failure to protect the interests and rights of children. This paper will analyse the status of the children and their rights in relation to the Indian Constitution. 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.

They are oblivious to life's complexities. Citizens like us must take their hand in ours and guide them in the right direction, but this can only happen through international cooperation and proper implementations, so that we will we be able to achieve our goal of creating a safe environment for children to prosper. 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.

Umpteen 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.

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.

In India, the commission for the protection of children's rights (act 2005) has had some success in promoting children's rights. Notable examples include the elimination of child labor and the protection of children and young people. The commission’s purpose is to "ensure that all laws, policy decisions, programs, and implementation methods are in accordance with the Child Rights perspectives as exemplified in the Indian constitution and the UN Convention on the Rights of the Child," which was adopted in 1989.

Promoting children's rights is clearly a government priority in India, as it is enshrined in the constitution and protected by legislation. Even after this, children in India continue to suffer obstacles in obtaining these rights, especially those related to education, forced labor, and child marriage. As children account for 39 percent of India's 1.21 billion population, it is critical that their rights should be respected. In 1992, India joined the United Nations on the Rights of the Children to become an ethical labor market for international corporations.

The Convention arose from Jebb's desire to alleviate children's suffering by providing them with a healthy, pleasant, and safe environment in which they could be nourished physically, intellectually, and psychologically. The Convention resonates strongly with these aspects. Human rights exist to ensure that people are treated fairly and properly around the world and to promote their well-being, but child rights go beyond that. Children, who are defined as anyone under the age of 18, do require more than just human rights to meet their specific needs.

The constitution makers were concerned about making provisions for children's safety and made provisions for protection of children by which they mean the protection of the mind, of the body, dignity, of their rights, and so on. The Constitution included numerous provisions concerning the lives of children. Many laws, policies, and schemes have been enacted to strengthen the constitutional provisions.

Various Rights of Children

Right to education (Article 28)
Article 21-A of the Constitution provides that "the state's right to education must provide all children between the ages of six and fourteen with free and mandatory education in a manner which the state may determine by law. In its generous interpretation of life and freedom, as laid down by Article 21, the Supreme Court held that the term freedom does not only include freedom, but also the standard of living, human rights to live dignified lives and also includes the right to education.

The Mohini Jain case was strengthened by the supreme court, which held that the right to education could be limited to primary education rather than secondary education. The right to free primary education is crucial for children's development of discipline and life skills, as well as finding a healthy and safe environment in which is required to nurture their physiological development. In India, access to education remains a major problem and a major impediment to the realization of children's rights. India continues to have the world's largest number of illiterates, with 287 million adults, and 37 percent of the global total.

Though India's literacy rate has increased by 15% between 1991 and 2006, but the total number of illiterates remained high due to eventual population growth. Even after India's efforts to devote 10.5 percent of total government spending to education, the country's decentralized nature means that wealthy states can spend significantly more on education than poorer states.

Article 26 of the Universal Declaration of Human Rights, as well as Articles 13 and 14 of the International Covenant on Economic, Social, and Cultural Rights, represent the right to education in international law. Most importantly, these Articles ensure that all children, regardless of religion, caste, gender, or financial circumstance, receive an education. This Article ensures that no child is denied access to a fundamental education. Everyone should have access to a basic education.

Right to life

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.

Female infanticides remains a cultural practice that still continues, and is the biggest danger to Indian children's right to life. Thousands of minor Indian girls die every day, either before or after birth, since they are not desired or accepted by their families. The dowry system, which tends to make daughters "an unaffordable economic burden," is one factor that contributes to the practice of female infanticide.

Numerous Indian family’s resort to selective abortion of the female foetus to address this issue (feticide). Even more frightening is when a child's birth is unavoidable, families drown, poison, suffocate, or cause the child's death through deliberate misconduct. The reality is even more terrifying: globally, 117 million girls go missing as a result of selective sex-abortions, and in India, 9 female foetuses are aborted every minute. India also ranked fourth among countries with the most skewed sex ratio, with 112 males for every 100 females, due to sex-abortions.

Right to equality

Within the territory of India, the State shall not refuse any person the equality before the law or equal protection under the law, according to this Article. Citizens of India, including children, must be treated equally in front of the law and must be given equal protection by the law, free of discrimination and unfairness. This right, which is enshrined in the Indian Constitution, safeguards children's rights so that their dignity and integrity as children are not abused.

In Indian society, children who are vulnerable are more likely to be treated unfairly. Discrimination is prohibited under Article 15 of the Indian Constitution. Nothing in this Article prevents the state from making special provisions for women and children, according to Article 15(3). Article 15(3) makes it clear that "special provision" does not imply unequal treatment, but rather is formed for the well-being and advancement of Indian children.

Right to health (Article 23 and 24)

Access to health is a crucial component of achieving children's rights. Nearly one million children below the age of five die in India, with an estimated 39 deaths per 1,000 live births. Women and children are disproportionately affected by barriers to health care, such as maternal and infant coverage. Only one out of every three Indian women benefits from regular pregnancy monitoring.

Only 37% of births in rural areas are aided by qualified healthcare professionals. India has over 204 million malnourished people, with Indian children suffering the most. India's children suffer from a high prevalence of stunting, with rates as high as 39%. As a result, the government launched a massive public awareness campaign to educate the public about the importance of eating a varied and balanced diet.

Other issues that children face include a high rate of HIV infections (3700 new infections among children), a lack of clean drinking water, and proper sanitation. The latter is due to inequitable access to comprehensive health care for women and children in rural areas.

Employment of children in factories is prohibited (Article 24)

No child under the age of fourteen may be employed in a factory or mine, or in any other dangerous occupation, as per this Article. Construction or railway work are examples of hazardous conditions. This Article does not forbid any work that is not harmful. In India, child labour is regulated and prohibited under this Article.

Child labour is defined as work that deprives children of their childhood, ability, and dignity, as well as work that jeopardizes their physical and mental development. With such a large population, UNICEF estimates that India has a high rate of child laborers. Following its independence from colonial rule, India enacted numerous legal protections and laws regarding child labour.

The Right to form an Opinion (Article 12 and 13)

Every child is entitled to express his/her opinions without criticism or disdain. When adults decide actively on their children's choices, adults have a right to take their views into account. Although the views of children may not be based on facts, they nonetheless provide parents with important insights and should be taken into account. However, the level of maturity and age of the child depends on that. Children have freedom of speech, as long as their opinions and understanding do not harm others.

Right of children to be protected from an armed conflict. (Articles 38 and 39)

In this armed conflict innocent children are converted to refugees, prisoners or armed conflict members and all these circumstances are in violation of war spirit and of any armed conflict that can severely harm the morale of a child and the interpretation of ethics, which must be rectified in a safe environment for nurturing. The government must also make sure that children are not forced to take part in any armed struggle while trying to rehabilitate children affected by war.

The right to an identity (Articles 7 and 8)

Children have the right to a name registered legally by the government and a nationality (that belong to a country). Moreover, in the form of a public record they must have a right to an identity. This guarantees both domestic support and access to social services.

Challenges to children rights

Child Labour

The term child labour is defined in Articles 23 and 24 of the constitution. In recent years, India has made strenuous efforts to combat child labor through various programs. Food scarcity, extreme poverty, and social and economic circumstances are all major contributors to this problem. Other factors include a lack of awareness about the negative effects of child labor, as well as a lack of basic and meaningful quality education and skills training. Child labor is frequently the result of adult unemployment or low parental wages, which forces children to help with household chores. Children who are forced to work rather than attend school are unable to develop physically, mentally, emotionally, or psychologically. Despite the fact that India has one of the world's youngest populations, but there are more than 42.7 million children are out of school.

Child Abuse

Child sexual abuse is a pervasive problem in India that has a negative impact on children's health and well-being. According to statistics, one child is sexually abused every 15 minutes. Child abusers can be divided into two groups, as per research. The first group accounts for roughly 60% of officially identified offenders who do not have a sexual preference disorder but commit sexual assault for various reasons. Those with a sexual preference disorder, such as paedophilia, are in the other group.

Child Marriage

Over the 20-year period 1992–2012, the percentages of girls marrying under the age of 16 and under the age of 18 in India decreased. Furthermore, the average age of marriage is 16.6 years. There is some proof that child labor increases the likelihood of child marriage. Girls who married as children were also less likely to have completed secondary school. Only 40% of child brides remained enrolled in school by the age of 15, particularly in comparison to 86 percent of girls who were not married when they turned 18.

Acts for protection of children

Protection From Sexual Abuse (Pocso) Act 2012

The POCSO Act, 2012 provides for the protection of children from sexual assault, sexual abuse and pornography crimes, whilst safeguarding the interest of children through the incorporation of child-friendly mechanisms, at each stage of the judicial process.

Child Labour (Prohibition And Regulation) 1986 Act

The hiring of children in certain jobs that are dangerous for the child and can mentally and physically affect the child are prohibited. It governs the working conditions of children in other jobs and protects them from being exploited and has severe punishments. It was the intention of this Act to prohibit children's work commitments in certain jobs and regulate them in areas not prohibited. It gives the government the power to lay down health and safety regulations wherever child employment is allowed. Children's working in night is also forbidden. State and Central Government shall also consider the hours of work for children.

Supervision And Control Act 1960, The Orphanaces And Other Charitable Homes

This law provides for oversight and control over the homes of abandoned women in orphanages.

The 2015, Juvenile Justice Act

The earlier Juvenile Justice Act of 1986 was repealed by this, which had complied with the Child Rights Convention. In 2006 and 2010 this Act was revised. This Act was reversed in 2015, this Act provides a particular approach to protecting, treating and developing children and mentions how to protect a child in a family without home or supplications etc.

In accordance with Section 15 of this Act special arrangements were made to address offenders who commit abominable offences under age 16-18. This Act provides a special approach to child protection and treatment and ways to protect a child from all external threats.

Child Marriage Prohibition 2006

Following the repeat of the Child Marriage Restriction Act, the government of India introduced the Prohibition of Child Marriage Act 2006. The Act's primary objective is to prevent marriage between children. This Act guarantees that marriage between children is entirely eradicated. A child according to this Act is a woman who is under the age of 18, and a woman who is under the age of 21.

Landmark decision on the rights of children

  • M.C Mehta v. State of Tamil Nadu [1]

    The petitioner was worried about the high incidence of child labour in hazardous conditions in the Savakis Match factories in Tamil Nadu's Kamaraj district, so the court issued an order prohibiting child labour in hazardous conditions. The judgement outlined the constitution's visions and established a connection between child labour and poverty. It also claimed that the state has failed to properly eradicate child labour
     
  • Sanjay Suri v. Delhi administration [2]

    The court issued transfer orders for some of the officers who were found guilty, as well as laws to protect children in jails. Sanjay Suri's petition focused on juvenile undertrials. Despite the ban in the Children's Act, several children were sentenced to prison. The juveniles were grouped with habitual and other adults, where they were brutalised and forced to perform unpleasant tasks.
     
  • Gaurav Jain v. Union of India [3]

    The Supreme Court ruled that segregating prostitutes' children was not in their best interests. The Supreme Court ruled that the children of prostitutes have the right to equal opportunity, integrity, treatment, and security, and that they should be recapitalized so that they can enter the mainstream of society without stigma.
     
  • Vishal Jeet v. Union of India [4]

    Several directives have been given to prevent children from being sexually exploited. The state government was ordered by the court to provide rehabilitation homes for children found begging on the streets and minor girls forced into the flesh trade.
     
  • Sheela Barse v. the Secretary Children’s Aid Society & Ors [5]

    The Supreme Court ruled that a child should never be kept in jail and that a central law be enforced to add uniformity to the juvenile justice system. The petition was filed in the public interest due to the inappropriate operation of a childcare facility in Mumbai.
     
  • Unnikrishnan J.P &Ors v. State of andhra Pradesh [6]

    The right to education is implicit in the right to life, according to the court. The Court's decision in this case extended the Right to Education to include in the Right to Life. The 86th Amendment to the Constitution, passed in 2002, incorporated the right to education into the right to life.

Conclusion
Despite all these elements of the legal system, there is still a shortage that exists, and there are still problems to be met in the present and future. There are many instances where children have been denied justice. Social evils such as child marriage and child labour continue to exist in society. The explanation for child labour is, of course, poverty; there have been several instances where the provisions of the IPC have proven to be ineffective.

There are still cases where a child is abducted, murdered, or physically, psychologically, or sexually abused. Even in the today's modern world, the rate of crime is high. The law should be made more stringent, and all punishments should instill fear in people's minds. Children have a delicate mind that can be moulded beautifully into a creative and better vision, they are the gift of god and needs proper care and attention.

Justice Bhagwati rightly cited that:
the child is a creature with its own being, nature and ability, and they must be helped to find them, to reach the maturity, maximum physical and vital energy and the widest, most profound and highest level of its intellectual, emotional and spiritual existence".

Children require direction and assistance. They are unaware of the complexities of life. It is up to citizens like us to take their hand in ours and lead them in the right direction. Because social workers play such an important role in eradicating social ills, a more thorough examination of their qualifications and professional capacity is required. These are the children who would bring a healthy and prosperous nation to our country. Only with international cooperation and implementation of the right to development, the final acknowledgment of children's rights be achieved.

Bibliography
Statues Referred:
  1. Protection from Sexual Abuse (POCSO) Act 2012
  2. Constitution of India
  3. Child Labour (Prohibition and Regulation) Act 1986
  4. Juvenile Justice Act 2015
  5. Constitution of India
Books Referred:
  1. M.P. Jain, Indian Constitutional Law 98 (Kamal Law House, Calcutta, 5th edn., 1998).
  2. M.P. Jain and S.N. Jain, Principles of Administrative Law 38 (Wadhawa, Nagpur, 2001).
Articles Referred:
  1. Rachit Garg, “Legal framework for the protection of child rights”, December 6,2020
  2. Jyoti raj Pathak, “An analytical study on the rights of children and the constitution of India”, March 9 ,2012
  3. Imandeep Kaur Grewal, “Understanding Child Rights in India”, September 2011
Websites Referred:
  1. Realising children’s right in India, available at https://www.humanium.org/en/india/ (Last Modified November 30, 2019
  2. Legal framework for the protection of child rights, available at https://blog.ipleaders.in/legal-framework-protection-child-rights/ (Last Visited on April 16, 2021)
  3. Children rights with reference to various provisions of constitution, available at http://www.legalservicesindia.com/Article/285/Children-Rights-under-the-Constitution.html (Last Modified August 31, 2017)
  4. Fundamentals of children rights in India, available at https://www.savethechildren.in/child-protection/fundamentals-of-child-rights-in-india/ (Last visited on April 17, 2021)
End-Notes
  1. 1991 AIR 417
  2. 1988 AIR 414
  3. (1997) 8 SCC 114
  4. 1990 AIR 1412
  5. 1987 AIR 656
  6. 1993 AIR 217
Written By: Himanshi

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