CHAPTER - IV

CONSTITUTIONAL PROVISIONS FOR

PROTECTION OF CHILD LABOUR

“The child is a soul with a being, a nature and capacities of its own, who
must be helped to fine them, to grow into their maturity, into a fullness of physical
and vital energy and the utmost breath, depth and height of its emotional,
intellectual and spiritual being otherwise there cannot be a healthy growth of the
nation”.

- Justice P.N. Bhagwati, 100

Child Rights are fundamental freedoms and the inherent rights of all human beings below
the age of 18. These rights apply to every child, irrespective of the child's, parent's / legal
guardian's race, colour, sex, creed or other status. The essential message is equality of
opportunity. Girls should be given the same opportunities as boys. All children should have the
same rights and should be given the same opportunity to enjoy an adequate standard of living.

Children are innocent, trusting and full of hope. Their childhood should be happy and
loving. Their lives should mature gradually, as they gain new experiences. But for many
children, the reality of childhood is altogether different. 2 million Indian babies will die before
they celebrate their first birthday. More girl children will be killed at birth than in any previous
year. At least 35 million children aged 6 – 14 years (if you believe the official statistics) will not
be in school. 17 million children in India work.

Right through history, children have been abused and exploited. They suffer from hunger
and homelessness; work in harmful conditions, high infant mortality, and deficient health care
and limited opportunities for basic education. A child need not live such a life. Childhood can
and must be preserved. Children have the right to survive, develop, be protected and participate
in decisions that impact their lives.
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Former Chief Justice of India
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Andhra University, Visakhapatnam

 In 1992, India ratified the United Nations Convention on Rights of the Child. The Charter
of Child Rights (CRC) is built on the principle that "All children are born with fundamental
freedoms and ALL human beings have some inherent rights". The Charter confers the following
basic rights on all children across the world:101

1) The right to survival - to life, health, nutrition, name and nationality

2) The right to development - to education, care, leisure, recreation
3) The right to protection - from exploitation, abuse, neglect
4) The right to participation - to expression, information, thought and religion

The children are citizens in their own right, entitled to the full spectrum of human rights. Our
children will only attain these rights guaranteed to them if each one of believes this should be so
and exercises all the power at our command – as parents, neighbours, consumers, employees,
businesspeople, teachers, politicians, journalists, professionals, bureaucrats, activists and most
importantly as citizens – to make this a reality.

India’s children to reach large numbers of people and enlist their support for this cause by
speaking out, demanding, negotiating as required with the relevant state or citizen bodies for the
rights of children. The Constitution contains provisions in respect of children under Part III of
the Constitution, i.e. Fundamental Rights, and Part IV of the Constitution, i.e. Directive
Principles. In order to enable the children to develop as responsible and productive members of
tomorrow’s society and to ensure that opportunities are provided for all the children to develop
physically, mentally., socially, spiritually, and morally. The children have been bestowed with
certain basic rights in the national charters.

Constitutional Provisions and Child Labour

The Constitution of India is an elaborate document with 395 Articles which are
divided into 22 parts and having 12 Schedules. It is one of the most comprehensive
Constitutions in the world. This basic document of the country makes special provisions for
certain selected classes of people like backward class women, children, etc. This documents

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even though is the supreme law of the land, it is people of India who have given to
themselves this Constitution. The preamble to the Constitution states that the people of
India have given to themselves the document. The Constitutional provision dealing with
welfare of children is explicit and is directly categorized into two categories. The explicit
provisions dealing with the child welfare are Article 15(3), 24, 39 (e) and 45. One of the
important features of the Constitution of India is that while it recognizes the principle of
equality before law, it provides for protective discrimination. For example, under the
Constitution it is provided that State can make special provisions for women and children. 102
Similarly, clause 4 of Article 15 allows the state to make provisions for the advancement of
any socially and educationally backward classes of citizens or for the Scheduled Castes and
Scheduled Tribes. Part III of the Constitution guarantees certain fundamental freedom to the
citizens of the country and imposes certain restrictions on the State's power. The Constitution
also authorizes the State to impose certain reasonable restrictions on the rights under third
chapter. The right that are guaranteed under this chapter are;

Equality before law (Article 14)

Prohibition of discrimination on certain grounds (Article 15)
Equality of opportunity in matters of public employment (Article 16)
Abolition of title (Article 18)
Protection of certain rights regarding freedom (Article 19)
Protection against ex-post facto laws and double jeopardy (Article 20)
Protection of life and personal liberty (Article 21)
Protection against and detention in certain cases (Article 22)
Prohibition of employment of children in certain cases (Article 24)
Right of freedom of religion (Article 25)
Cultural and educational right) (Articles 29, 30) and
Right to Constitutional remedies (Article 32)

Child Labour and Fundamental Rights

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Article 15(3)
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Andhra University, Visakhapatnam

 Part-III of the Constitution of India contains a long list of Fundamental Rights. This
chapter has very well been described as the Magna Carta of India. Fundamental Rights are
limitations upon all the powers of the government, executive as well as legislative and they
are essential to the preservation of public and private rights, notwithstanding the
representative chapter of political institutions. The rights are regarded as fundamental because
they are most essential for the individual for the development of his full intellectual,
moral and spiritual potentialities. The negation of these rights will hamper the individuals'
personality development. The declaration of fundamental rights under the Constitution
limits governmental activities in the interest of the liberty of the citizens. Thus children have
rights to enjoy all the fundamental rights which are guaranteed to the citizens and non-citizens
of India under Chapter III of the Constitution.

The guarantee of Fundamental Rights under Chapter III of the Constitution is for
citizens and persons (foreigners and juristic persons). The rights to persons impliedly pave
the way for protection to children in India. There are few Articles in which State in enable to
protective provision in favour of children namely Articles 15(3), 24 and 39 of the
Constitution.

It is submitted that a specific positive provision serves the purpose of avoiding any
controversy and demonstrates the concern, however inadequate provisions of the
Constitution aggravates the problem in respect of the welfare of the people including children.
Our solicitude for children and repulsion for the exploitation of children of tender age
compelled our founding fathers to make a specific mention of them. The State can make law
for welfare of children giving them preferential treatment over other persons in the society.

Article 21 is to provide for the protection of life and personal liberty of the people
including children. "Right to Life" in the context has been held to be not a mere animal
existence but it is to be with human dignity and values. Article 23 of the Constitution
prohibits traffic in human beings, begar and other similar forms of forced labour and
exploitation. Although this article does not specifically speak of children, yet it is applied to
them and is more relevant in their context because children are the most valuable section of
the society. It is a known fact that many children are exploited even by the parents who

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allows their exploitation because of their poverty. And in the absence of parents, their
exploitation by close relatives is still deeper. They are deprived of education, made to do
all sorts of work injurious of their health and personality. In rural areas, children are pledged
by destitute parents to the landlords as full-time servant or part time worker to look after
both domestic and agricultural operation. In urban areas, the exploitation of children in
myrid from exists such as helpers to artisans and skilled workers and also as domestic
servants. Millions of children are exploited in violation of this fundamental right and no
adequate and satisfactory legislative and administrative measures have been taken by the
State to protect children.

In reference to children the word 'begar' can be given a wide cannotation. Begar
does not require total absence of payment. Even inadequate payment for the work rendered
by the child amounts to begar or forced labour. The most atrocious and heinous crime against
helpless children is that they are captured and used by criminal gangs to indulge them in
begging business. Sometimes the children of tender age are enticed for the flesh trades thus
all in violation103.

It prohibits that the employment of children below the age of 14 years in factories,
mines or hazardous employment.104 But in the context of the prevailing poverty in the
country, it would be extremely difficult to implement the above provision. Employment of
children below a particular age is also -prohibited taking into consideration their physical
structure. This article does not create and absolute bar to the employment of children below
the age of 14 years. Moreover it does not prohibit their employment altogether. The
employment of children is prohibited only is factory or mine or in any other hazardous
occupation. However, this provision is to be understood in the light of realities and
economic need of parents and children in our society. As Article 24 prohibits the
employment of children below the age of 14 years. It is submitted that even with respect to
children above the age of 14 years, all agreements either express or implied are voidable and
devoid of validity in case of exploitation. Further Article 24 is plainly enforceable against
every one and reason of its compulsive mandate, no one can employ a child below the age

103
Article 23
104
Article 24
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Andhra University, Visakhapatnam

of 14 years in a 'hazardous employment'. Hazardous employment of child below 14
years is a Constitutional prohibition which even if not followed up by the appropriate
legislation, must operate with force.1 It is therefore, necessary to identify the employment
which may be called 'hazardous' employment. Thus Article 24 is an example of additional
precautionary measures securing distributive justice to children.

There are also the fundamental rights which are available to any person. Thus the
question arises whether the fundamental rights which are available to a 'person' are also
available to the child or not? The answer to this question finds its answer whether the word
'person' includes the child or not? The Indian Constitution does not define the word 'person'
obviously for child a 'person' cannot include an 'artificial person'. But the question still
remains whether an unborn child is included in the definition of 'person' as used in Articles
14, 17, 18(1), 20, 21, 23, 25, 27, 28 and 32 of the Indian Constitution. There is no direct
decision of Indian Supreme Court on this point. The Allahabad High Court, however, held
that for the purpose of section 304-A (a) of Indian Penal Code, the word 'Person' includes a
child born or unborn. A child in womb can be regarded as a living entity with a life of its
own. In Hindu law a child in womb is deemed to be in existence as a person is entitled to share
the joint family property. Thus the fundamental rights which are available to any 'person' may
also be available a child.

Child Labour and Directive Principles of State Policy

Part-IV of the Constitution provides for certain Directives Principles of State Policy.
These directions may be described as the active obligations of the State. The principles laid
down are treated as fundamental in the governance of the country and it shall be the duty of
the State to enforce these principles is making laws. According to Article 37, the principles
provided for in Part IV are not enforceable in any court and they are to be applied by the State
in making laws. The gist of this part could be laid down as follows:

"The State shall secure a social order in which social, economic and political justice
shall inform all the institutions of national life. Wealth and its source of production shall
not be concentrated in the hands of the few but shall be distributed so as to subserve the
common good, and there shall be adequate means of livelihood for all and equal pay for equal
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work. The State shall endeavor to secure the health and strength of workers, the right to work
to education and to assistance in cases of want, just and humane conditions of work and
living wage for workers, a uniform civil code and compulsory education for children. The
state shall take steps to organize village panchayats, promote the educational and economic
interest of the weaker sections of the people, raise the level of nutrition and standards of
living, improve public health, organize agriculture and animal husbandry, separate the
judiciary from executive and promote international peace and security, so also to foster
International law and treaty obligations in the dealings of organized people with one another".

The underlying principles of the Directive Principles of State Policy are to fix certain
social and economic goals for immediate attainment by bringing about non-violent social
revolution. Through such a social revolution, the Constitution also seeks to achieve the
objective of the child welfare. To achieve the goals of child welfare, the Directive principles
of state policy have been designed with an earnest zeal to strive to promote the welfare of
people by securing and protecting as effectively as it may be social order in which justice
social, economical and political shall inform all the institutions of national life. Naturally, an
effective implementation of this principle results in promoting the welfare of the people
through social, economic and political justice and in turn is expected to promote
proportionately, the child welfare also.

It directs the State to evolve a policy eliminating the abuse of tender age and to free
children from the circumstances forcing them to enter into avocations unsuited to their age of
strength.105 The State is also directed to create social and economical conditions and
infrastructure for the healthy development of children and to provide facilities and climate
for exercises of freedoms and maintenance of dignity. The State is further directed to protect
the children against exploitation and moral and material abandonment.

It deals with the right to work, to education and public assistance in certain cases
though it does not mention children. 106 The ending words “and in other cases of,
undeserved want". The State shall be within the limits of its economic capacity and
development make effective provision for securing the right to work, to education and to

105
Article 39 (e) and (f)
106
Article 41
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Andhra University, Visakhapatnam

public assistance in case of unemployment, old age, sickness and disablement, and in other
cases of undeserved want. It covers the children as the suffering children deserved the least
fate as in no cases they can he held responsible for their past sins. Hence it is the duty of
State to provide social assistance to all the children who suffer for want to basic necessities of
life. The implementation of this provision is also expected to promote the welfare of the
children proportionately and to ensure distributive justice to them.

It requires the State to make provisions for securing just and humane conditions of
work and for maternity relief.107 The measures for maternity relief are meant for expectant
mothers during the period of pregnancy and after the child birth. These measures meant for
providing proper health care and other facilities to the mothers before and after the child
birth are expected to promote the health of children and to provide healthy environment for
their bringing up.

A duty is imposed upon the State to provide free and compulsory education within a
period of ten years of the commencement of the Constitution for all the children until they
complete the age of 14 years.108 This Directive signifies that it is not only confined to primary
education, but extends to free education, whether it may be on the age of 14 years. Article 45
is thus supplementary to Article 24 on the ground that when the child is not to be employed
before the age 14 years, he is to be kept occupied in some educational institution. It is
suggested that Article 24 in turn supplements the clauses (e) and (f) of Article 39, thus
ensuring justice to children in the matter of education. It is suggested that Articles 24 and 45
should be amended so as to raise that age limit from 14 to 16 years. By doing so the children's
education atleast up to Matriculation, would be ensured for the proper growth and
development of their personality. There are various State Acts, which stipulate the upper age
limit of 16 years.

It provides that the State shall promote with special care, the educational and
economic interests of the weaker section of the people, and in particular of Scheduled castes
and Scheduled tribes, and shall protect them from social injustice and all forms of

107
Article 42
108
Article 45
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exploitation.109 The implementation of this principle, while promoting the economic and
educational interests of the weaker section of the people particularly those of Scheduled caste
and Scheduled tribes, will indirectly promote the welfare of the children of these sections of
the society. The need of the welfare measures is most desirable because of the appalling
poverty and backwardness of their parents.

Article 47 imposes a primary duty upon the State to raise the level of nutrition and the
standard of living of its people and improvement of public health. Thus it is the responsibility
of the state to provide nutritious food to the children as the word "people" includes not only
adults but children as well. Perhaps this provision becomes more relevant in case of children
as the malnutrition can cause irreparable danger to the personality of the children through
mental retardation and blindness.

Though these directives are not enforceable by the court, yet these have been
declared to be fundamental in the governance of the country. It is the obligation of the State
to apply these principles in making laws. If the government ignores them it will certainly
have to answer for them before the electorate at the time of the election.

Thus, it will not be correct to say that there is no sanction of enforceability behind
these directives. In our democratic setup, vigilant public opinion is the real force behind the
political institution which stands for the benefit of individual. The actions of the
government are subject to security by the masses and distinguished leader of the different
parties. If the government pursues a policy in accordance with the principles of the
Constitution, people tolerate it; otherwise they oust it in the next election. Since these
directives relating to the welfare of children have also been embodied in the Constitution the
government is apt to implement them. Through they do not have legal force behind them but
the highest tribunal, i.e. public opinion is behind them.

According to interpretation given by the Supreme Court in earlier cases to Article 37

and IV, these directions even it disobeyed by the state, could not affect the legislative power
of the state. This approach was due to the stand that these directives are only directory in
scope and operation. However, there was a substantial change in this judicial attitude and

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Article 46
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recent decisions project this view. In Air India Statutory Corporation v. United Labour
110
Union, the Supreme Court reiterated that Directive Principles in the Constitution are
forerunners of the U.N. Convention on the Right to Development as inalienable human
right and every person and all people are entitled to participate in, contribute to, and enjoy,
economic, social, cultural and political development in which all human rights and
fundamental freedoms would be fully realized. These principles are regarded as embedded
as integral part of the Constitution in the Directive Principles. Therefore, these principles now
stand elevated to inalienable fundamental human rights. Even though earlier the Directive
Principles were considered to be non-justifiable they are regarded as justifiable by themselves.
Another important landmark in the Indian Constitution in Article 141 which proclaims that
"the law declared by the Supreme Court shall be binding on all Courts within in territory of
India. Hence even in the absence of a specific law. If the Supreme Court declares the
law, it will be binding on all courts in the country.

Cases like Mohini Jain v. State of Karnataka, 111 Unni Krishan v. State of Andhra
Pradesh 112 and M.C. Mehta v. State of Tamil Nadu 113 are example in this regard.

In a welfare state like India the impartial Judiciary is above all. Its decisions are
binding not only on all citizens but the Government. It could not be fair if we fail to
acknowledge the role of judiciary in safeguarding, protecting and liberating the interests of
the child and child labour. Specially the apex court of the country, i.e. Supreme Court and
the State High Courts of the different States are taking active participation in protecting and
liberating the poor and the weakest of the weak viz. child labourers and child bonded
labourers from being exploited, in various ways, besides it has helped to bring in social
reform and social equality.

The trend of giving greater attention to children received an impetus because of its
relationship with the task of social and economic planned efforts. Unless the tender plant is
properly tended nourished, it has little chance of growing into a strong and use full tree. Thus our
constitution did not ignore the coming generation .A child born in free India and its
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AIR 1997 SC 645
111
AIR 1992 SC 1454
112
AIR 1993 SC2178
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AIR 1997 SC 699
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constitutional rights are not conditional by circumstances of its birth such as caste, religion or
status.

Children are the greatest assets of a nation; they should get preferential treatment on
priority basis. If this asset is wanted the country will become bankrupt in human material. The
need of children and the duties towards them are enshrined in the Indian Constitution.

Equality before law, i.e. equal treatment and protection under law. All children in similar
circumstances are required to be treated in a similar manner, and if not so treated, such treatment
can be challenged on the ground of discrimination and arbitrariness.114

Permits the State to make special provisions for women and children. Special enactments
made for the benefit of children cannot be struck down on the ground of discrimination.

It states, that” Nothing in this Article shall prevent the state from making any special
provision for women and children.”115

It empowered the state to make provisions for children; this clause is exception to the
fundamental right against discrimination provided by (1) and (2) article 15. The provision of free
education for children or measure for prevention of their exploitation will be not be in
contravention of prohibition under clause (1) of present article , and it is termed as
discrimination. Similarly, the prohibition of separate accommodation, entrance etc for women
and children at places of public interest resort will not be violation of clause (2) of the article.

This clause is an exception to rule against discrimination provided by Article 15(1) and
(2)116. Thus the special provisions for protection of the children for their very vulnerable nature
(Article 24) nor will not be contravention of prohibition against discrimination nor will be
provision of free education for children (Article45) or measures for provision against their
exploitation (Article 39(a)). Similarly the prohibition of separate accommodations entrance etc
for children at place of public resort will not be a violation of clause (2) of the present Article.

114
Article 14
115
Article 15(3)
116
Article 15(3)
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 Article 23 is enforceable not only against the state but also against private persons. Court
may also direct the State to provide rehabilitation of the bonded labour and also to provide
minimum wages to them if necessary.

Prohibits the employment of a child below 14 years in any factory or mine or any other
hazardous employment. As an adjunct to the guarantee of personal liberty our constitution in
Article 24 lays down certain provision to prevent to prevent exploitation of the weaker sections
by unscrupulous individuals organization or even by the state. The prohibition imposed by
Article 24 is absolute and does not admit any exemption to the employment of child in any
hazardous occupation. It is implemented by the prohibition of employment of children in
factories by the Factories Act 1948, Mines act 1952 etc.117

Apart from these Fundamental Rights the state is enjoined to direct its policy towards
securing that the tender age of children is not abused and childhood and youth are protected
against exploitation and against moral and material abandonment. Thus the legislation passed the
orphanages and other charitable Homes Act 1960, which provides for the supervision and control
of orphanages homes for neglected children. Act also provides care, protection, maintenance,
welfare training education and rehabilitation of neglected or delinquent children.

The State is required to ensure protection of children of tender age from abuse, and from
entering vocations unsuited to their age and strength. Children are also to be provided with equal
opportunities and facilities to develop in a healthy manner with freedom and dignity. The State is
to further ensure that childhood and youth are protected against exploitation and abandonment.118

The above Articles are provided with a view to emphasis the constructive role of the state
with regard to children. Article 21 has been interpreted to include the right to live with human
dignity, free from exploitation. Hence where labour and social welfare laws are enacted by the
state, the courts should strictly enforce such laws against the government themselves. Held in
case Bandhu Mukthi Morcha v. Union of India.119

117
Article 24
118
Article 39(e) & (f)
119
AIR 1984 SC 802
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 In M.C. Mehta v. State of Tamilnadu,120 case it was held that in view of Article 39, if the
employment of children in factories connecting with manufacturing process of matches and
fireworks, couldn’t be allowed as it is hazardous.

In Gaurav Jain v. Union of India,121 the SC has issued a number of directions to the
government and all social organizations to take upon appropriate measures for protection of
women in various forms of prostitution and to rescue them from falling them again into the trap
of red light areas and to rehabilitate their children through various welfare measures so as to
provide them with dignity i.e. good livelihood and socio economic improvement. As to
protection of children from exploitation Government of India has framed a National child policy.

The State is required to take steps to secure educational opportunities and facilities. The
shall within the limits of its capacity and development make effective provision for securing the
right to work, right to education, and right to public assistance in case of unemployment, old
age, disablement sickness and in case of undeserved want. 122

The duty of the state under this Article is not only to establish educational institution but
also to effectively secure the right to education by admitting students to the seats available at
such institutions, by admitting candidates found eligible according to some rational principle.
The State is to endeavour to secure for all citizens a uniform civil code. A uniform civil code
implies a uniform legal framework for adoption of a child applicable to all religions.123 The State
is to take measures to ensure free and compulsory education for all children till they attain 14
years of age124

The programme of Universalization of elementary education was given priority to fulfill

the above purpose. The revised programme of action 1992, of National policy on education
1986, resolved to ensure free and compulsory education with satisfactory quality to all children
up to 14 years of age. The improvement of public health and the raising of the level of nutrition

120
AIR 1997 SC 699
121
(1997) 4 SCALE 657
122
Article 41
123
Article 44
124
Article 45
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is a primary duty of the State.125 The State is to respect international law and treaty obligations.
The Government of India and the State Governments are obligated to the commitments
contained under the Convention on the Rights of the Child.126

The 86th Amendment Act has added this fundamental duty in 2002 :“who is a parent or
guardian to provide opportunities for free education to his child or as the case may be ward
between the age of six and fourteen years.”127

Public Interest Litigation [PIL]

PIL may be resorted to in order to ensure that the State performs its duty towards
children. PIL has resulted in improving the conditions prevailing in child-care institutions,
enforcing the implementation of the Child Labour [Prohibition and Regulation] Act,
strengthening inadequate laws, setting aside discriminatory laws, etc. Generally, an aggrieved
person files a petition before the Courts to redress his/her grievances. The concept of PIL
recognizes that certain persons are unable to access this conventional mode of justice due to
poverty, age or vulnerability, and it is therefore imperative that some other person or
organization is enabled to move the Courts to protect the rights of such persons. Children are
unable by themselves to access the legal system and claim their rights. A public-spirited
individual or a non-governmental organisation may file a PIL to ensure that a particular child or
children are protected and ensured their legal rights.

A PIL is to be filed before the writ jurisdiction of the Supreme Court or the High Courts,
and the opposite party is the Central or State Government, or any of its agencies. The
Constitution enables the filing of PIL under the following articles;

This article empowers the Supreme Court to intervene to enforce rights guaranteed by the
Constitution.128 This article empowers the High Courts to intervene to enforce rights guaranteed
by the Constitution. 129

125
Article 47
126
Article 51(c)
127
Article 51 A (K)
128
Article 32
129
Article 226:
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Right to Health

The Constitution which deals with right to life has been interpreted by the Courts to
include "right to health". 130 The Constitution of India states that the improvement of public
health is one of the primary duties of the government. Under the Bombay Municipal Corporation
Act 1888 it is the duty of the corporation to establish and maintain hospitals. 131

Pt. Parmanand Katara v. Union of India & Ors.132 case was filed for abstaining a
direction that every injured citizen brought for medical treatment should instantaneously be
given medical aid to preserve life, and only thereafter should the procedural criminal law be set
into motion in order to prevent deaths that can be avoided by prompt medical treatment. The
Supreme Court held that every doctor whether at a Public Hospital or otherwise has the
professional obligation to provide medical services with due expertise for protecting life. Legal
procedures should follow medical treatment, and should not interfere with the saving of a life.
Medical professionals who give treatment should not be harassed with legal procedures; these
procedures often deter a medical professional from performing his duty.

Right to Education
The Constitution of India provides for free and compulsory education for children until
they complete 14 years of age. 133 The Constitution of India provides for the government to take
effective steps for securing the right to education.134 The Constitution of India states that the
government must direct its policy towards giving children opportunities and facilities to develop
in a healthy manner.135 The Constitution of India states that the government must attempt to
eliminate inequalities in facilities and opportunities.136

130
Article 21 of
131
Article 47 of
132
AIR 1989 S.C. 2039
133
Article 45
134
Article 41 of
135
Article 39
136
Article 38
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 137
Unni Krishnan, J.P. v. State of Andhra Pradesh. This judgment emphasises the
importance of education, and included the right to education as a fundamental right under Article
21 of the Constitution, i.e. right to life. The Supreme Court observed that 'education is a
preparation for a living and for life'. This judgment concluded that, the right to free education
upto the age of 14 years is a fundamental right.

'We hold that every citizen has a "right to education" under the Constitution. The State is
under an obligation to establish educational institutions to enable the citizens to enjoy the said
right.'

The Constitution and Child Rights

The main constitutional provision on the rights of the child. Article 28 reads:

(1) Parliament shall enact such laws as are necessary to ensure that: -
Promotion of Child Rights: The Role of the Judiciary, by Judge C.A. Wilson, Circuit
Court 4
a) Every child has the right to the same measure of special care, assistance and
maintenance as it necessary for its development from its natural parents, except where
those parents have effectively lities in respect of the child in accordance with law.
(b) Every child, whether or not born in wedlock, shall be entitled to reasonable provision
out of the estate of the parent.
(c) Parents undertake their natural rights and obligation of care, Maintenance and
upbringing of their children in co-operation with Such institutions as Parliament may, by
law, prescribe in such manner that in all cases the interest of the children are paramount.
(d) Children and young person receive special protection against Exposure to physical
and moral hazards; and
(e) The protection and advancement of the family as the unit of society safeguarded in
promotion of the interest of children.
(2) Every child has the rights to be protected from engaging in work that constitutes a
threat to his health, education or development.

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AIR 1993 S.C. 2178
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(3) A child shall not be subjected to torture or other cruel, inhuman or degrading
treatment or punishment.
(4) No child shall be deprived by any other person or medical treatment, education or
any other social or economic benefit by reason only of religion or other beliefs.
(5) For the purposes of this “Child” means a person below the age of eighteen years.

Since independence, India has been to pursue, the promises made to its people,
constitutionally through the preamble, Fundamental Rights and Directive principles of the state
policy. These promises have been reinforced from time to time through the planned documents,
budgetary statements, annual plans and manifest of political parties. The analysis says that all
Presidents, Prime Ministers and cabinet Ministers clearly reveal that the government is
committed to provide the people a decent living base on dignity and freedom. The Goal before
the nation is the attainment of a welfare state. The word welfare state has undoubtedly becomes
a” watch word of contemporary India”.

Education is commonly referred to as the process of learning and obtaining knowledge at

school, in a form of formal education. However, this commonplace definition does not go in
depth of the need of education for the all round personality development of an individual.
Education is now recognized as a basic human right, the need and significance of which has been
emphasized on the common platform of the United Nations, through the medium of various
Covenants and Treaties. It is also being seen as an instrument of social change and hence
education leads to empowerment which is very important for a country like India, which after 59
years of independence has not been able to eradicate illiteracy in spite of the constitutional
mandate given by way of Article 45 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights & Full Participation) Act, 1995.

Although countries all over the world have made laws relating to imparting of education,
these laws have not been created in a vacuum. There exists various international commitments
by way of convention, treaties etc., which have compelled governments all over the world to
enact provisions relating to education and its establishment as a human right. Article 26 of the
Universal Declaration of Human Rights, 1948 clearly proclaims the right to education. Protocol
1 of the European Convention on Human Rights, 1952, states that no person shall be denied the
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right to education. According to UNESCO Convention against Discrimination in
Education,1960, the States’ parties to this convention undertake to formulate, develop and apply
a national policy which will tend to promote equality of opportunity and of treatment and in
particular to make primary education free and compulsory.

However, till the mid-1960’s, the UN recognized the importance of education but did not
make any strong policy recommendation in terms of making it a fundamental right. It was only
after the International Covenant on Economic, Social and Cultural Rights, 1966 that the United
Nations started viewing education as a right. Protocol of San Salvador to the American
Convention on Human Rights, 1988, states that the States’ parties to this Protocol recognize that
in order to achieve the full exercise of the right to education, primary education should be
compulsory and accessible to all without cost. In 1989, Convention on the Rights of the Child,
the rights of the children was standardized, in a single legal instrument, approved by the
international community.

In India the development of right to education has undergone an eventful journey, when
the Constitution was enacted education was kept in the Part IV of the Constitution, as Directive
Principles of State Policy, wherein Article 41 provides rights to work, to education, and to public
assistance in certain cases. Article 45 makes provision for free and compulsory education.
Article 46 provides the promotion of educational and economic interests of scheduled castes,
scheduled tribes and other weaker sections. Education is a two way concept, it is the state’s
obligation to provide education by way of the Directive Principles of State Policy, and it is also
guaranteed as a fundamental right in Part IV of the Indian Constitution.

Right to education, was for the first time recognized as a fundamental right in the case
of Anand Vardhan Chandel v University of Delhi, 138 the Delhi High Court observed that the law
has now settled that the expression ‘life and personal liberty’ in Article 21 of the Constitution
includes a variety of rights, though they are not enumerated in Part III of the Constitution,
provided that they are necessary for the full development of the personality of the individual and
can be included in the various aspects of the liberty of the individual. The right to education is,
therefore, also included in Article 21 of the Constitution.

138
(2000) 10 SCC 648
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 In the case of Bapuji Education Association v State the Court,139 expanded the contours
of personal liberty guaranteed by Article 21 of the Constitution to the extent it includes in its
ambit the right of the minorities to education. But the Supreme Court took notice of this
140
controversy in the case of Mohini Jain v State of Karnataka, while deciding issues of
capitation fee in education institutions in Karnataka, the court held that the right to life under
Article 21 and the dignity of an individual couldn’t be assured unless accompanied by the right
to education. The very next year in 1993 the Supreme Court delivered the judgment in the case
of Unnikrishnan J.P. v State of Andhra Pradesh,141 which overruled the decision in Mohini
Jain’s case, wherein, it was held that the right to education was a fundamental right available to
all the citizens of India but the said right is available only up to the age of 18 years.

The 86th Amendment Act was a result of the recommendations of the two committees
namely the Education Commission and Saikia Committee. The Amendment Act provided for the
following three insertions/changes in the Constitution. The insertion of Article 21-A, which
provides that the State shall provide free and compulsory education to all children between the
ages of 6-14 years in such a manner as the State may by law determine. An amendment to
Article 45, that is the provision for early childhood care and education to children below the age
of 6 years; the State shall endeavor to provide early childhood care and education for all children
until they complete the age of 6 years. In Article 51-A, after clause (j) the following clause (k)
has been inserted: “a parent or guardian shall provide opportunities for education to his children
or ward between the ages of 6-14 years.”

In my opinion the Legislature has completely ignored the children in the age group of
three to six years which is a very crucial period for mental and physical growth of the child. The
new amendment failed to carry forward the spirit of Article 45 as it stood before the Amendment
which provided education for all children up to the age of 14 years. While it’s an established fact
that the scope and ambit of the Constitutional provision of right to education extends to the
disabled persons also, the right to education for the disabled is available up to the age of 18

139
ILR 1985 KAR 80
140
1992 AIR 1858, 1992 SCR (3) 658
141
1993 AIR 2178, 1993 SCR (1) 594
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years. Disability in The Persons with Disabilities (Equal Opportunities, Protection of Rights &
Full Participation) Act, 1995, has been defined in the interpretation clause.

Disability is not merely a physical fact, but also involves a normative, cultural, and legal
concept. The society’s perception of a disabled person also reflects its idea of a normally
functional human being and the definition as considered by the society gives us an insight into
the society’s self image. The recognition by the society of the terms mentally and physically
disabled also implies a responsibility of the society towards the people who fit that description. A
society with deep ethos of social responsibility is likely to be more open in its definition of
disability.

* * *

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