JUDICIAL ACTIVISM AND ITS SIGNIFICANCE IN PROTECTIN CHILD

RIGHTS IN INDIA1

INTRODUCTION
Every nation, developed or developing links its future with the status of the child. Childhood
hold the potential and also sets the limit to the future development of society. Children are
greatest gift to humanity. The children signify eternal optimism in the human being and
always provide the potential for human development. If the children are better equipped with
a broader human output, the society will feel happy with them. Neglecting the children means
loss to the society as a whole. If the children are deprived of their childhood; economically,
socially, physically and mentally, the nation gets deprived of the potential human resources
for social progress, economic empowerment, peace and order, social stability and good
citizenship2.
For full development as human being, exercise and enjoyment of human rights by all is
necessary. Human rights and fundamental freedoms help us to develop our intrinsic qualities,
intelligence, talent and conscience to meet our material and spiritual need 3. In 1948, The
United Nation General Assembly adopted and proclaimed a code commonly known as
Universal Declaration of Human Rights which called all member states to pledge themselves
to achieve, inter alia, and promote special protective care and assistance to children4.
About two billion children in the world are living in dehumanizing conditions. Millions of
children in various age groups are employed in industries, hotels and other places on account
1 Arpan Pradhan, Year-5th, Sem-9th, BALLB (Hons.), Hidayatullah National Law University,
New Raipur
2 Nirmal Kanti Chakrabarti, Law and Child, R. Cambray and Co. Pvt. Ltd, Kolkata, 2004, p. 46.
3 Bhakhry and Savita, Children in India & their Rights, NHRC, New Delhi, 2006, p. 5.
4 Nirmal Kanti Chakrabarti, Law and Child, R.Cambray and Co.Pvt.ltd, Kolkata, 2004, p. 3.

1 | Page

of object poverty; several others are disabled, orphaned and traumatized due to wars,
landmines and various national and international policies of the governments of the world
detrimental to the interest of the child. Deprived of proper education, health and basic
amenities of life, they are forced to work at a very young age, in difficult and hazardous fields
simply to sustain their own lives and that of their families, who entirely depend on them. It
may be true that much attention is being paid to improve the conditions of the child through
the enactment of various laws, by holding seminars and conferences and through
declarations, conventions at regional and international initiatives and instruments have made
little difference to the live of millions of suffering children and have achieved practically
little in terms of their welfare. It is obvious that in civilized society, the importance of child
welfare cannot be overemphasized because the welfare of the entire community, its growth
and development depends on the health and well being of its children. Children are a
supremely important national asset and the future of a nation depends on how its children
grow and develop. Thus children are the very soul of any nation5.
The study of law relating to children is very important because the man of tomorrow will be
of the same kind as today he is a child. Actually child is future of the nation. When we
discuss about the rights of the child, we discuss about the rights of the person who may not
even envisage those rights of the child and who cannot fight for those rights. If he does so,
people may not consider his word as valid because he is minor. It is presumed that he does
not understand what is in his interest. Therefore, it is for adults to consider, formulate and
fight for those rights. Considering its importance the General Assembly adopted on 20 th
November, 1989 the United Nation Convention on the Rights of Child6which came in force
on 2nd September, 1990 after receiving the necessary ratification. India acceded to it in the
year 1992. Children should grow and develop all rounds physically, mentally, emotionally,
and socially. For this, proper care and facilities should be provided to them. Children need
food, clothing, shelter, health facilities, education, protection, entertainment and above all
love and care. These are the basic rights of children.
Children can demand these things from their parents and elders. Most of the children are not
aware of their rights. Hence, it is the responsibility of the adults to make them aware of their
5 D.Venkateswara Rao forwarded by K.K.Sud, Child Rights, Manak Publications, New Delhi, 2004, p. xi.

6 D.Venkateswara Rao forwarded by K.K.Sud, Child Rights, Manak Publications, New Delhi, 2004, p. xi.

2 | Page

rights. Children are tender and small. Children are dependent on their elders. The future of
every child depends on care, facilities and opportunities they get during their childhood.
Therefore, if children do not get what they need, they cannot grow up to become worthy
citizens of the country. In order to grow up properly, some basic needs are to be fulfilled as
their rights.

1.1.1

Some Rights of Children

The rights of the children provided under various enactments and the legislations are the
following:

Right to food

Right to clothing

Right to shelter

Right to education

Right to entertainment.

Right to good health and proper care

Right to name and country.

These are some of the rights. It does not matter whether a child is rich or poor, has parents or
is an orphan, is strong or weak, sick or healthy, all children have the same rights.
1.1.2

Protection of Child Rights

The evolution of international standards to protect children is a product of global modernity,

which makes the international consensus that is the basis of the CRC even possible; but this
evolution is also more necessary because global modernity has proliferated conditions of
child exploitation by redefining the functions of the family, kinship and community 7Human
7

O Neill and Dawn Zinga , Childrens Rights, University of Toronto Press, Canada, 2008, p. 9.

3 | Page

rights apply to all age groups; children have the same general human rights as adults. But
children are particularly vulnerable and so they also have particular rights that recognize their
special need for protection. While the Convention on the Rights of the Child is addressed to
governments as representatives of the people, it actually addresses the responsibilities of all
members of society. Overall, its standards can be realized only when respected by everyone
parents and members of the family and the community; professionals and others working in
schools, in other public and private institutions, in services for children, in the courts and at
all levels of government administration and when each of these individuals carries out his or
her unique role and function with respect to these standards. Governments are obliged to
recognize the full spectrum of human rights for all children and consider children in
legislative and policy decisions. While many States are beginning to listen seriously to
childrens views on many important issues, the process of change is still in its earliest stages.
Children have a right to express their opinions and to have their views taken seriously and
given due weight. But children also have a responsibility to respect the rights of others,
especially those of their parents. The Convention specifically refers to the family as the
fundamental group of society and the natural environment for the growth and well-being of
its members, particularly children. Under the Convention, States are obliged to respect
parents primary responsibility for providing care and guidance for their children and to
support parents in this regard, providing material assistance and support programmes. States
are also obliged to prevent children from being separated from their families unless the
separation is necessary for the childs best interests. Against this background this work on
Analytical study on UN Convention on Rights of the Child with special reference to Indian
judicial activism in promoting and implementing the international law norms in the Indian
Courts on human rights, particularly in Child rights assumes special significance.8
UNITED NATION COVENTION ON RIGHTS OF THE CHILD
The United Nations Convention on the Rights of the Child (commonly abbreviated as
the CRC, CROC, or UNCRC) is a human rights treaty setting out the civil, political,
economic, social, health and cultural rights of children. The Convention generally defines a
child an under the age of eighteen, unless an earlier age of majority is recognized by a
countrys law. Nations that ratify this convention are bound to it by international law.
Compliance is monitored by the United Nations Committee on the Rights of the Child which
is composed of members from countries around the world. Once a year, the Committee
8

Retrieved from<http://www.unicef.org>

4 | Page

submits a report to the Third Committee of the United Nations General Assembly, which also
hears a statement from the CRC Chair, and the Assembly adopts a Resolution on the Rights
of the Child. Governments of countries that have ratified the Convention are required to
report to, and appear before, the United Nations Committee on the Rights of the Child
periodically to be examined on their progress with regards to the advancement of the
implementation of the Convention and the status of child rights in their country. Their reports
and the committees written views and concerns are available on the committees website.
The United Nations General Assembly adopted the Convention and opened it for signature on
20 November 1989 (the 30th anniversary of its Declaration of the Rights of the Child. It came
into force on 2 September 1990, after it was ratified by the required number of nations. As of
November 2009, 194 countries have ratified it, including every member of the United
Nations except Somalia and the United States of America. Somalias cabinet ministers had
announced plans to ratify the treaty. Two optional protocols were adopted on 25 May 2000.
The First Optional Protocol restricts the involvement of children in military conflicts, and
the Second Optional Protocol prohibits the sale of children, child prostitution and child
pornography. Both protocols have been ratified by more than 140 states 9. Detick, who has
provided adetailed and authoritative annotation of each of the substantive articles of the CRC,
concludes: While the Convention on the Rights of the Child may not be the last or complete
words on childrens rights, it is the first universal instrument of a legally binding nature to
comprehensively address those rights. As such, it forms a universal benchmark on the rights
of the child a benchmark against which all future claims for evolution will and must be
answered.10
2.3

Significance of the Convention

Effecting that change requires us to use the CRC in its fullest sense, and to take advantage of
its three following fundamental strengths.
1) First, it is a legal instrument, defining unequivocally the responsibilities of government to
Children within their jurisdiction.

9 Retrieved from<www.en.wikipedia.org/wiki/Convention_on_the_Rights_of_the_Child>
10

Trevor Buck, International Child Law, Cavendish Publishing, Great Britain, 2005, p.47

5 | Page

2) Second, it is a framework for the duties born by different actors at different levels of
society to respond to the rights of Children, and it helps us understand the knowledge, skills,
resources or authority needed to fulfill those duties.
3)

Third, it is an ethical statement, both reflecting and building upon core human values

about our commitment to collectively provide the worlds children with the best we have to
give.
2.4

The New Vision of the Child in the Convention

The Convention provides a universal set of standards to be adhered to by all countries. It

reflects a new vision of the child. Children are neither the property of their parents nor are
they helpless objects of charity. They are human beings and are the subject of their own
rights. The Convention offers a vision of the child as an individual and a member of a family
and a community, with rights and responsibilities appropriate to his or her age and stage of
development.11
2.5

A Brief Description of the Convention on the Rights of the Child.

Definition of the Child12 The Convention defines a child as a person below the age of 18,
unless the laws of particular country set the legal age for adulthood younger. The Committee
on the Rights of the Child, the monitoring body for the Convention, has encouraged States to
review the age of majority if it is set below 18 and to increase the level of protection for all
children under 18.
Non- Discrimination13: The Convention applies to all children, whatever their race, religion
or abilities, whatever they think or say, whatever type of family they come from. It doesnt
matter where children live, what language they speak, what their parents do, whether they are
boys or girls, what their culture is, whether they have a disability or whether they are rich or
poor. No child should be treated unfairly on any basis.

11

Recognizing childrens rights in this way firmly sets a focus on the whole child. Previously seen as negotiable, the childs needs have
become legally binding rights. No longer has the passive recipient of benefits, the child become the subject or holder of rights.

12 Article 1 of United Nation Convention on Rights of the Child 1989

13 Article 2 of United Nation Convention on Rights of the Child 1989
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Best Interests of Child14: The best interest of children must be the primary concern in
making decisions that may affect them. All adults should do what is best for children. When
adults make decision, they should think about how their decisions will affect children. This
particularly applies to budget, policy and law makers
Protection of Rights15: Governments have a responsibility to take all available measures tp
make sure childrens rights are respected, protected and fulfilled. When countries ratify the
Convention, they agree to review their laws relating to children. This involves assessing their
social services, legal, health and educational systems, as well as levels of funding for these
services. Governments are then obliged to take all necessary steps to ensure that the
minimum standards set by the Convention in these areas are being met. They must help
families protect childrens rights and create an environment where they can grow and reach
their potential. In some instances, this may involve changing existing laws or creating new
ones. Such legislative changes are not imposed, but come about through the same process by
which any law is created or reformed within a country. Article 41 of the Convention points
out higher standards always prevails.
Parental Guidance16: Governments should respect the rights and responsibilities of families
to direct and guide their children so that, as they grow, they learn to use their rights properly.
Helping children to understand their rights does not mean pushing them to make choices with
consequences that they are too young to handle. Article 5 encourages parents to deal with
right issues in a manner consistent with the evolving capacities of the child. The
Convention does not take responsibility for children away from their parents and give more
authority to governments. It does place on governments the responsibility to protect and assist
families in fulfilling their essential role as nurtures of children.
Survival and Development17: Children have the right to live. Government should ensure that
children survive and develop healthily.

14 Article 3 of United Nation Convention on Rights of the Child 1989

15

Article 4 of United Nation Convention on Rights of the Child 1989

16 Article 5 of United Nation Convention on Rights of the Child 1989

17 Article 6 of United Nation Convention on Rights of the Child 1989
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Registration, Name, and Nationality, Care18: All the children have the right to a legally
registered name, officially recognized by the government. Children have the right to a
nationality and also have the right to know and, as far as possible, to be cared for by their
parents
Preservation of Identity19: Children have the right to an identity- an official record of who
they are. Governments should respect childrens right to a name, a nationality and family ties
Separation from Parents20: Children have the right to love with their parents, unless it is bad
for them. Children whose parents do not live together have the right to stay in contact with
both parents, unless this might hurt the child.
Kidnapping21: Government should take steps to stop children being taken out of their own
country illegally. This article is particularly concerned with parental abductions. The
Conventions Optional Protocol on the sale of children, child prostitution and child
pornography has a provision that concern abduction for financial gain.
Freedom of Expression22: Children have the right to get and share information, as long as
the information is not damaging to them or others. In exercising the right to freedom of
expression, children have the responsibility to also respect the rights, freedoms and
reputations of others. The freedom of expression includes the right to share information in
any way they choose, including by talking, drawing or writing.
Right to Privacy23: Children have a right to privacy. The law should protect them from
attacks against their way of life, their good name, their families and their homes.

18 Article 7 of United Nation Convention on Rights of the Child 1989

19 Article 8 of United Nation Convention on Rights of the Child 1989
20 Article 9 of United Nation Convention on Rights of the Child 1989
21 Article 11 of United Nation Convention on Rights of the Child 1989
22 Article 13 of United Nation Convention on Rights of the Child 1989
23 Article 16 of United Nation Convention on Rights of the Child 1989
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Protection from All Forms of Violence24 Children have the right to be protected from being
hurt and mistreated, physically or mentally. Government should ensure that children are
properly cared for and protect them from violence, abuse and neglect by their parents, or
anyone else who looks after them.
Knowledge of Rights25: Government should make the Convention known to adults and
children. Adults should help children learn about their rights, too.
Implementation Measures: articles 43-54 discuss how governments and international
organizations

like

UNICEF

should

work

to

ensure

children

are

protected

IMPLEMENTATION MEASURES
As in any of the international conventions, implementation is the weakest part of the
Convention on the Rights of the Child. Article 43 of the Convention provides that for the
purpose of examining the progress made by states and the realization of the obligations
undertaken in the Convention, there shall be a Committee on the Rights of the Child. Article
45 provides for the effective implementation of the Convention and to encourage
international co-operation, the Committee may invites specialized agencies, UN organs and
the UNICEF to be represented at the consideration of implementation of such provisions as
they would fall within their respective mandates. One of the main drawbacks of the
Convention is that nowhere does it hold state responsible for failure to implement the
childrens rights they have accepted as a matter of obligation.
3.2

Committee on the Rights of the Child

A Committee on the Rights of the Child has been monitoring the Convention since 1991.The
Committee in accordance with Article 43 of the Convention, is composed of ten experts of
high moral standing and recognized competence. The members of the Committee are elected
for a term of four years and are eligible for reflection. The Conference of State Parties to the
Convention on 12, 1995 adopted an amendment to Article 43 increasing the membership of
the Committee to 18 experts. The amendment was approved by the General Assembly on
December 21, 1995.26 The members of the Committee shall be elected by secret ballot from a
24 Article 19 of United Nation Convention on Rights of the Child 1989
25 Article 42 of

United Nation Convention on Rights of the Child 1989

26 H.O. Agarwal, International Law and Human Rights, Central law Publication, Allhabad, 2006, p. 718.
9 | Page

list of persons nominated by State Parties. Each State Party may nominate one person from
among its own nationals.
The Committee on the Rights of the Child is a body of experts monitoring the
implementation of the CRC by State Parties to the Convention. The Committee holds regular
session per year to review State Parties report on progress made in fulfilling their obligations
under the Convention and its Optional Protocols. The Committee can make suggestions and
issue recommendations to government and the General Assembly on ways to meet the
Conventions objectives. All State parties are obliged to submit regular report to the
Committee on how the rights are being implemented. State must report initially two year after
ascending to the Convention and then every five years. The committee examines each report
and addresses its concerns and recommendations to the State party in the form of concluding
observations the Committee reviews additional report which must be submitted by State
who acceded to the two Optional Protocol to the Convention27
3.2.1 Working procedure
A working group of the Committee meets prior to each of its session for a preliminary
examination of reports received from state parties, and to prepare the Committees discussions
with the representatives of reporting State. In addition to State report, the working group
considers information provided by other human treaty bodies. The Committee also receives
information from mechanisms established by the Commission on Human Rights to
investigates human rights problems in specific countries or on thematic issues, for example
the Special Reporters on torture, on extrajudicial, summary or arbitrary executions and on
violence against women. A key partner in this context is the Special Reporters on the sale of
children, child prostitution and child pornography
3.2.2

Urgent procedure

There is no procedure outlined in the Convention for individual complaint from children or
their representatives. The Committee may, however request further information relevant to
the implementation of the Convention. Such additional information may be requested from
Governments if there are indications of serious problems.

27 Retrieved from <www2.ohchr.org>

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3.3

General Measures of Implementation

In drafting its reporting guidelines for States, the Committee on the Rights of the Child
placed emphasis on concrete implementation measures which would make a reality of the
principles and provisions of the Convention. More specifically, the Committee paid special
attention to necessary reforms within the spirit of the convention and procedures for constant
scrutiny of progress. Under article 4 of the Convention, State parties are required to undertake
all appropriate legislative, administrative and other measures to the maximum extent of their
available resources and where needed, within the framework of international cooperation. An
early step in the implementation process is for a State party to review its legislation and
ensure that laws are consistent with the Convention for instance law are needed for the
protection of children against exploitation in both the formal and informal labour market, and
to ensure free and compulsory primary education. Mechanism may be introduced at the
national and local level to coordinate policies and monitor the implementation of the
Convention, including through an ombudsmans office. The political decision making process
is important. What procedure are there to ensure that childrens affairs are taken seriously in
all relevant governmental structures, as well as in both the parliament and local assemblies?
Are there opportunities for children themselves and their representatives to make them heard?
The gathering of reliable and relevant information on the situation of children is another
important step to be taken. With precise data, discussion regarding remedies will be better
informed and focused. Improvement of the capacity of the national statistical office can
therefore be an essential contribution to the implementation of the Convention. Other means
of the principles and rights enshrined in the Convention are education and training of
personnel working with children, such as nursery school and other teachers, child
psychologists, pediatricians and other health personnel, the police and other law enforcement
personnel, social workers and other. A broader awareness and knowledge of the convention
among people at large can also serve as a basis for implementation. It is an obligation under
the convention (Art.42) for states reports on implementation must also be made widely
available to the public28. What is meant by the wording that states should implement
economic, social and cultural rights to the maximum extent of their available resources
(Art14)? How does the convention relate to financial constraints? The convention recognizes
that some of the more costly reforms cannot take place overnight. It specifies for instance,
that the rights although each state party always has its own obligations. Rich or poor, a state
28 Part III of the Constitution. For details see Durga das Basu, Shoter Constitution of India,Prentice-Hall of India Pvt. Ltd., New Delhi,
1996, p. 22-23.

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must allocate the maximum extent of its available resources for the implementation of the
convention. Priority should be given to children. Donor countries are encouraged to review
their development cooperation programmes in the light of the convention. At the same time,
developing countries may identify a need for international cooperation in their reports in their
implementation of the convention.
3.3.1 Advisory Services
The convention on the rights of the child and the committee on the rights of the child attach
special importance to international cooperation and assistance as ways of achieving the
effective protection of childrens rights. Article 45(b) authorizes the committee to transmit to
the relevant agencies and bodies any reports from states parties that contain a request or
indicate a need for technical advice or assistance, along with the committees observations
and suggestions. The committee often makes recommendations for technical cooperations
In its concluding observations addressed to State parties as an outcome of the reporting
dialogue. The United Nation High Commissioner for Human Rights, whose mandate includes
the enhancement cooperation for the promotion and protection of all human rights, is
providing assistance in this regard and encourages Governments to respond favorably to the
Committees recommendations.
State parties are requested to provide relevant information pursuant to article 4 of the
Convention, including information on:
a)

The measures taken to harmonize national law and policy with the provisions of the

Convention
b)

Existing or planned mechanisms at the national or local level for coordinating policies

relating to children and for monitoring the implementation of the Convention

In addition, States parties are requested to describe the measures that have been taken or are
foreseen pursuant to article 42 of the Convention, to make the principles and provisions of the
Convention widely known, by appropriate and active means, to adults and children alike.
ROLE OF INDIAN JUDICIARY
The role of the India Judiciary and the scope of judicial interpretation have expanded
remarkably in recent times, partly because of the tremendous growth of statutory intervention
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in the present era. The judiciary plays an important role in the protection of fundamental
rights29of the citizen and non-citizens alike. The twin safeguards of equality before law and
equal protection of laws30 are acknowledge as two of the most important pillars of human
rights of the universe of freedom that is where ever freedom to assert human rights is
recognized, whether under an unwritten or a written constitution. India is the largest
democracy in the world, a sovereign, socialist, secular 31 democratic and republic with a
comprehensive charter of rights written into its constitution. The Indian Constitution lays
down base on which its foreign policy should be constructed and its international obligations
respected. These base are articulated principally in Article 51 32 which occurs in Part IV of the
Indian Constitution.
The true nature and scope of the function of the court has since long been a matter of debate
almost in all the countries regulated by written Constitution. Austinian Jurisprudence gives a
very narrow view of the judicial function. Austin defined law as a command of the political
sovereign and his sovereignty was indivisible and absolute, only the legislature could make
law. The function of the court was merely to declare the pre-existing law or to interpret the
statutory law. But on the other hand, the realist movement in the United State the latest
branch of sociological Jurisprudence which concentrates on decisions of law courts. Regards
and contend that law is what court says. For them, judges are the law makers. The entire
common law is the creation of the English courts but is posited on the myth that judge merely
found law. Even with such self-negating perception of their own role, the English judges not
only made law but also changed it to suit entirely new conditions created by the industrial
revolution.

29 Part III of the Constitution. For details see Durga das Basu, Shoter Constitution of India,Prentice-Hall of India Pvt. Ltd., New Delhi,
1996, p. 22-23.

30 Article 14 of the Indian Constitution: The State shall not deny to any person equality before law or the equal protection of the laws
within the territory of India.

31 Word secular is inserted by the Constitution (42nd Amendment) Act, 1976

32 Article 51: The Stae shall endeavour to (a) promote international peace and security; (b) maintain just and honourable relations between
nations; (c) foster respect for international law and treaty obligations in the dealing of organise peoples with one another; and (d) encourage
settlement of international disputes by arbitration.

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In this modern era Judicial Activism emerged as tool for protecting Rights of the Children
including protection from sexual exploitation, child trafficking, child abuse etc. some case
dealt by the Indian judiciary for the protection of child rights are as follows
4.2

Child Labour and Right to Education

Education is critical for economic and social development. It is crucial for building human
capabilities and for opening opportunities. The importance of education was fully recognised
by classical economist and social scientist such as Adam Smith, John Stuart Mill, Schultz,
Becker and Amartya sen. Alfered Marshall in the Principles of Economics observed as
follows:
The wisdom of expending public and private funds on education in not to be measured by its
direct fruits alone. It will be profitable as a mere investment, to give the masses of the people
much greater opportunities, than they can generally avail themselves of. For by this means
many, who would have died unknown, are able to get the start needed for bringing out their
latent abilities. The most valuable of all capital is invested in human beings.
The abolition of child labour must be preceded by the introduction of compulsory education
since compulsory education and child labour laws are interlinked. Article 24 of the
Constitution bars employment of child below the age of 14 years. Article 45 is supplementary
to Article 24 for if the child is not to be employed below the age of 14 years he must be kept
occupied in some educational institution.
The Court in series of cases has unequivocally declared that right to receive education by the
child workers is an integral part of right of personal liberty embodied in Article 21 of the
Constitution. In M.C. Mehta v. State of Tamil Nadu33the Supreme Court held that the
children in terms of Article 45 of the Constitution are entitled to free and compulsory
education until they completed the age of 14 years. It observed that the Directive Principles
of State Policy have still remained a far cry and though according to this provision, all
children up to the age of 14 years are supposed to be in school, economic necessity forces
grown up children to seek employment. In Goodricke Group Ltd v Center of West Bengal
34

the Court held that it would be for the Centre and State/Union Territories to raise necessary

resources to achieve the goal of providing free education. Recently Article 21-A has been
33 AIR 1991 SC 417.
34 123 CTR 516
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inserted in the India Act, 2002 which provides that the state shall provide free and
compulsory education to all children of the age of six to furteen years in such manner as the
state may, by law, determine. In Unni Krishnan J.P. v State of Andhra Pradesh35 Justice
Mohan observed in educational institutions which are seed-beds of culture, where children
in whose hands quiver the destinies of the future, are trained. From their ranks will come out
when they grow up statesmen and soldiers, patriots and philosophers, who will determine the
progress of the land.
4.3

Child Labour Welfare and the Locus Standi

The liberalization of the concept of locus standi, to make access to the court easy, is an
example of the changing attitude of the Indian Courts. It is generally seen that the working
children by and large come from the families, which are below the poverty line, and there are
no means to ventilate their grievance that their fundamental rights are being breached with
impunity. Keeping in view the pitiable conditions of the child workers, the apex court has
shown its sensitivity towards the poor people by relaxing the concept of locus standi.
One important case in which Supreme Court entertained a letter, sent by post as public
interest litigation was the Peoples Union for Democratic Rights v. Union of
India36commonly known as the Asiad case. This case is an epoch-making judgment of the
Supreme Court of India, which has not only made a significant contribution to labour laws of
India, but also has displayed a creative attitude of judges to protect the interest of the Child
workers. The fact of the case were that the Peoples Union for Democratic Rights, an NGO,
addressed a letter to the Supreme Court annexing the report of social activists regarding the
conditions under which the workmen engaged in various Asiad projects were working.
Pointed reference was made in that report to the fact that there was violation of Article 24 of
the Constitution and of the provisions of Employment of Childrens Act, 1938. It was alleged
that children below the age of 14 years were employed in construction work of various
projects in construction of the provisions of Employment of Children Act, 1938. The Delhi
Administration and Delhi Development Authority took the stand that no complaint in regards
to the violation of the provision of that Act, was at any stage received by them. They also
argued that this Act was not applicable in case of schedule to the Act. The Supreme Court
took cognizance of the child workers interest and observed
35 AIR 1993 SC 2178
36 AIR 1982 SC 1473
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Large number of men, women and children who constitute the bulk of our population are
today living sub-human existence in conditions of object poverty. Utter grinding poverty has
broken their back and sapped the moral fibber. They have no faith in the existing social and
economic system. A high water mark in the application of the Article 24 of the Constitution
was reached in the decision of the Court in Salal Hydro Project v. Jammu and
Kashmir37wherein the Court reiterated the above stand. The Court maintained that child
labour is an economic problem. Poor parents seek to argument their meager income through
employment of their children. So, a total prohibition of child labour in any form may not be
socially feasible in the prevailing socio-economic environment. Article 24 therefore, puts
only a practical restriction on child labour. The Court further observed that so long as there is
poverty and destitution in this country, it will be difficult to eradicate child labour.
4.4

Juvenile Justice

The Juvenile Justice (Care and Protection) Act, 200038 is enacted as human rights legislation
and it is now in force in all State uniformly, repealing the entire Childrens Act enacted by
states individually. This legislation deals with the two types of juveniles. Juvenile in conflict
with law as defined under Section 2(1) and child in need of care and protection as defined
under Section 2 (d). A juvenile or a child as defined under Section 2 (k) is a person who has
not attained the age of 18 years. The penitentiary system shall comprise treatment of
prisoners, the essential aim of which shall be their reformation and social rehabilitation.
Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to
their age and legal status.
In Sheela Barse v. Union of India the Supreme Court held that a child is a national asset,
thus it is the duty of the state to look a 39fter the child with a view to ensuring full
development of its personality. That is why all the statutes dealing with children provide that
a child shall not be kept in jail. Even apart from this statutory prescription, it is elementary
that a jail is hardly a place where a child should be kept. There can be no doubt that
incarceration in jail would have the effect of dwarfing the development of the child, exposing
37 AIR 1987 SC 177
38 Juvenile Justice (Care and Protection) Act was enacted in 2000 by repealing the Juvenile Justice Act 1986. - See more at:
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39 AIR 1986 SC 1777.

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him to baneful influences, coarsening his conscience and alienating him, from the society. It
is a matter of regret that despite statutory provisions and frequently exhortations by social
scientist, there is still large number of children in different jails in the country as is one
evident from the reports of the survey made by the district judge pursuant to our order, dated
15th April, 1986. Even where children are accused of offences, they must not be kept in jails.
It is no answer on the part of the Sate to say that it has not got enough number of remand
homes or observation homes or other places where children can be kept and that are why they
are lodged in jails. It is also no answer on the part of the State to urge that the ward in the jail
where the children are kept is separate from the ward in which the other prisoners are
detained. It is the atmosphere of the jail which has a highly injurious effect on the mind of the
child, entraining him from the society and breeding in him a version bordering on hatred
against a system which keeps him in jail. The Apex court would, therefore like once again to
impress upon the state governments that they must set up necessary remand homes and
observation homes where children accused of an offence can be lodged pending investigation
and trial. On no account should the children be kept in jail and if a State Government has not
got sufficient accommodation in its remand of being subjected to incarceration in jail.
Where a complaint is filed or first information report is lodged against child below the age of
16 years for an offence punishable with imprisonment of not more than 7 years, the
investigation shall be complete within a period of three months from the date of filing of the
complaint or lodging of the first information report and if the investigation is not completed
within this time, the case against the child must be treated as closed. If within three months,
the charge sheet is filed against the child in case of an offence punishable with imprisonment
of not more than 7 years, the investigation shall be completed within a period of three months
from the date of filing of the complete or lodging of the first information report and if the
investigation is not completed within this time, the case against child must be treated as
closed. If within three months the charge sheet is filed against the child in case of the offence
punishable with imprisonment of not more than7 years, the case must be tried and disposed of
within a further period of 6 months at the outside and this period should be inclusive of the
time taken up in committal proceedings, if any.
In Sheela Barse v Secretary Children Aid Society40 the Supreme Court came forward to
protect the rights of the children in the observation homes. This is an appeals by special leave
made by Sheela Barse, freelance journalist by profession and a member of Maharashtra State
40 AIR 1987 SC 656

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Legal Aid and Advice Committee. In a writ petition she made grievance about the working of
the New Observation Home located at Mankurd, which is maintained and managed by
childrens Aid Society, Bombay. The Childrens Aid Society is registered under the Societies
Registration Act, 1860 and has been treated as a public Trust under the Bombay Public Trusts
Act 1950. The said Society receives grants from the sate and it is run as on observation home
under the provisions of the Bombay Childrens Act, 1948. In this writ petition, she challenged
the violation of Articles 21, 24 and 39 (e) of the Constitution of India. It was treated as writ
petition by the High Court of the Bombay and went into the matter at considerable length and
found some of the allegations to be without any justification. Yet, the High Court gave some
directions to the society and the Maharashtra Government with regards to the proper
maintenance of the observation homes.
Children are the citizens of the future era. On the proper bringing up of children and giving
them proper training to turn out to be good citizen, depends the future of the country. In
recent year, this position has been well realized. In 1959, the Declaration of the rights of the
child was adopted by the General Assembly of the United Nation and in Article 24 of the
international Covenant on Civil and Political Rights, 1966; the importance of the child has
been appropriately recognized. India as a party to these International Charters having ratified
the Declarations, it is the obligation of the Government of India as also the state machinery to
implement the same in a proper way. The Childrens Act, 1948 has made elaborate provisions
to cover this and if this provisions are properly translated into action and authorities created
under the Act become cognizant of their role, duties and obligation in the performance of the
statutory mechanism created under the Act and they are properly motivated to meet the
situations that arise in handling the problems, the situations would certainly be very much
eased. Gerontocracy in silent manner indicated that like a young plant a child takes roots in
the environment where it is placed. How so ever good the breed be, if the sapling is placed I a
wrong setting or an unwarranted place, there would not be the directed growth. Same is the
situation with the human child. The child welfare officer as also the superintendent of the
observation home must be duly motivated. They must have a working knowledge in
psychology and have keen sense of observation and on their good functioning would depend
on the efficiency of the scheme. The Supreme Court agreed with the contention advanced by
the appellant that for employment in childrens home, the childrens should be given
remuneration. Childrens in observation homes should not be made to stay long and as they
are there, they should be kept occupied and the occupation should be congenial and intended
to bring about adaptability in life aimed at bringing about self confidence and picking of
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human virtues. Dedicated workers have to be found out, proper training to them has to be
imparted and such people alone should be introduced into the childrens homes
In this case the Supreme Court maintained that the juvenile court has to be manned by a
judicial officer with some special training. Creation of a Court with usual judicial officer and
labeling it as juvenile Court does not serve the requirement of the statute. If that were so, the
statute would have no necessity of providing a juvenile Court. The statutory scheme
contemplates a judicial officer of a different type with a more sensitive approach oriented
outlook. Without these, any judicial officer would, indeed, not be competent to handle the
special problems of children. The Supreme Court further that, in recent year, children and
their problems have been receiving attention both of the government as also of the society,
but it must be said that the problems are of such enormous magnitude that all that has been
done till now is not sufficient. If there no proper growth of children of today, the future of the
Country will be dark. It is the obligation of every generation to bring up children who will be
citizen of tomorrow in a proper way. Todays children will be the leaders of the tomorrow
who will hold the countries banner high and maintained the prestige of the nation. If a child
goes wrong for want of proper attention, training and guidance, it will indeed a deficiency of
the society and of the government of the day. A problem child is indeed a negative factor.
Every society must, therefore, devote full attention to ensure that children are properly cared
for and brought up in a proper atmosphere where they could receive adequate training,
education and guidance in order that they may be able to have their rightful place in the
society when they grow up. In the instant case the Supreme Court agreed with the appellant
that the respondent- society should have been treated as a state within the meaning of Article
12, as it is undoubtedly an instrumentality of the sate on the basis of the test laid down by this
Court. The respondent- society has; therefore, to regulate its activities not only in accordance
with the statutory requirement but also act in a manner satisfying the requirements of the
constitutional provisions in Articles 21 and 24 as also the Directive principles of Sate policy.
The activist Supreme Court in this case directed the State of Maharashtra to take prompt
action to strictly enforce the law, act up to the requirements of the constitutional obligations
and proceeds to implement the directions given by the High Court as also by the Supreme
Court in this judgment. The Supreme Court also directed that the State of Maharashtra shall
pay to the appellant cost fixed at Rs.5000.
4.5

Adoption of Children

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Adoption concerns two of our basic human concerns identity and family. A childs rights to
an identity and family are now universally recognized. They are enshrined in the United
Nation Convention on the Rights of the Child, 1989.41
The Activist Supreme Court of India in Lakshmikant Pandey v Union of India42highlighted
the necessity of legal adoption of poor and destitute children to protect them from social and
economic exploitation and material abandonment. The Supreme Court through P.N.Bhagwati
J. Observed that every child has a right to love and to be loved and grow up in an atmosphere
of love of love and affection and moral and material security and that, this is possible only if
the child is brought up in a family. Hence the Court emphasized, encouraged and viewed as
the moral obligation of the society to provide a home for a needy child.
Children should be protected from exploitation. In recent times foreigners are adopting Indian
children who are destitute or have been abandoned by their biological parents. In order to
safeguard the children against exploitation by the foreigners who adopt them, the Supreme
Court has laid down in the above said case various safeguards for avoiding procedural delays.
The government is directed to publish at least once in year list of the recognized placement
agencies and their associates social and child welfare agencies. This list should be sent also to
the District Court and High Courts. Foreigners can be considered for guardianship for the
purpose of eventual adoption by them only when the application is sponsored by a social or
child welfare agency based in the country to which such foreigner belongs. If the foreigner is
resident in India a report is not required. The Indian placement agency can furnish the report
in such case. Before an abandoned child can be given away in adoption, the juvenile court
having Jurisdiction would have to give a release order. If the biological parents are known,
notice should be given to them before the juvenile court passes the release order. In this way
Supreme Court has safeguarded the interests of the child under Article 23 and 39 (f) of the
Indian Constitution.43

41 Asha Bajpai, Adoption Law and Justice to the Child, Center of Child and the Law NLSIU, Bangalor, 1996, p. 1. - See more at:
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42 AIR, 1986, SC, p. 1272

43 SCC 1 (1987) 66

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In fact, there is no general law on adoption or foster care. Adoption is recognized only in
Hindu law, which too, is not child oriented and contains certain outdated concepts viz. only
Hindu child may be adopted, the adoptive parents may not adopt a son if they have a son, a
grandson or a great-grandson. Similarly, a daughter cannot be adopted if there is a daughter,
sons daughter or sons daughter. No permission of the court is required where the child is
given in adoption by the natural guardian. Adoption once made is irrevocable. Non-Hindus
cannot adopt a child even if they wish to do so.
4.6

Sexual Exploitation of Children

Human Rights are derived from the dignity and worth inherent in the human person. Human
right and fundamental freedom have been retreated by the Universal Declaration of Human
Rights. The human rights for women, including girl child age, therefore, inalienable, integral
and indivisible part of universal human rights. All forms of discrimination on ground of
gender are violative of fundamental freedoms and human rights. It would, therefore, be
imperative to take all steps to prohibit prostitution. Eradication of prostitution in any form is
integral to social weal and glory of womanhoods. Right of the child to development hinges
upon elimination of prostitution. Success lies upon effective measures to eradicate root and
branch of prostitution.
In Vishal Jeet v. Union of India44 Supreme Court in this case deals with some seminal
questions relating to the sexual exploitation of children. Here it has been observed that it is
highly deplorable and heart rending to note that many poverty stricken children and girls in
the prime age of youth are taken to the flesh market and forcibly pushed into flesh trade
which is being carried on in utter violation of all cannons of morality, decency and dignity of
mankind. It has been also held that in this connection, it is significant to refer Article 39 of
the Constitution of India which relates to Directive Principles of State Policy under part IV
of the Constitution. Article 39 particularizes certain objectives. One of the objectives under
clause (f) of Article 39 is that the state should direct its policy towards securing the childhood
and youth are protected against exploitation and against moral and material abandonment.
These objectives reflect the great anxiety of the constitution framer to protect and safeguard
the interest and welfare of the children of our country. It has also been held in this case that
All the State Governments and the Governments of Union Territories should direct their
concerned law enforcing authorities to take appropriate and speedy action under the existing
laws in eradicating child prostitution and other kind of sexual exploitation. It has been also
44 AIR 1990 SC 1413
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held that the State Governments, and the Government of Union Territories should set up a
separate Advisory Committee within their respective zones who will look after that whether
the social welfare programmes to45 be implemented for the care, protection, treatment,
development and rehabilitation of the young, specially the girl child, who are the victim of
such exploitation.
In Gaurav Jain v. Union of India46 though the petitioner asked for establishing separate
educational institutions for the children of fallen women the activist Supreme Court observed
that segregating children of prostitutes by locating separate school and providing separate
hostels would not be in the interest of the children and the society at large. This Court
directed that they should be segregated from mothers and be allowed to mingle with others
and become a part of the society. Accepting the suggestions from the bar and rejecting the
limited prayer of the petitioner, the Apex court had ordered that children of prostitutes
should, however not be permitted to live in inferno and the undesirable surroundings of
prostitutes homes. This was felt particularly so in the case of young girls whose body and
mind are likely to be abused with growing age for being admitted into the profession of their
mothers. While this court did not accept the plea for separate hostels for children of and other
reformatory homes should be adequately available to help segregation of these children from
their mothers living in prostitute homes as soon as they are identified. In this case, the Apex
court appointed V. C. Mahjan committee to inquire into the problem and submit a report. The
report was accordingly submitted after extensive travelling to far and wide part of the
country. It studied not only the problem of children of the fallen women but also the root
cause of the menace of the child prostitution and the prostitution as such and the need for its
eradication. The prevailing conditions have been pointed out in the Report and beneficial
action already taken by some of the social action groups have been pointed out. They have
also deal with the problems of the children. The state government and the central government
were supplied with the copies of the report and they have not even objected to the
recommendations. In fact, they cannot be objected to since it is a fact prevailing,
unfortunately, in the country. Therefore the relief cannot be restricted to the pleadings or to
the scope of the directions earlier issued. The Court can take cognizance from indisputable or
the undisputed facts from the Reports of V. C. Mahajan committee and other reports and
45 Nirmal Kanti Chakrabarti,

Law and Child, R. Cambray and Co.Pvt.Ltd, Kolkata, 2004, p. 280.

46 AIR 1997 SC 3051

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articles published in recognized journals and act upon it. Placing reliance thereon, the
directions given in the order aim not only at giving benefits to children but also to root out, it
is for government to evolve suitable programme of action.47
4.7

Rehabilitation of Child Prostitutes

The rescue and rehabilitation of the child prostitutes and children should be kept under the
Nodal Department, namely; Department of Women and Child Development under the
Ministry of Welfare and Human Resource, Government of India. It would devise suitable
schemes for proper and effective implementation. The institutional care, thus, would function
as an effective rehabilitation scheme in respect of the fallen women or the children of fallen
women even if they have crossed the age prescribed under the Juvenile Justice (Care and
Protection) Act. They should not be left to themselves, but should be rehabilitated through
self-employment scheme or such measures as are indicated by the Supreme Court in this
case. The juvenile homes should be used only of a short stay or relieve the child prostitutes
and neglected juveniles from the trauma they would have suffered. They need to be
rehabilitated in the appropriate manner. The details are required
To be worked out by meaningful procedure and programmes. In the light of the directions
already given by this court from time to time to the central government state governments
and Union Territory Administrators, adequate steps should be taken to rescue the prostitutes,
child prostitutes and the neglected juveniles. They should take measures to provide them
adequate safety, protection and rehabilitation in the juvenile homes manned by qualified
trained social workers or homes run by NGOs with the aid and financial assistance given by
Government of India or state government concerned. A nodal committee with the public
spirited NGOs, in particular women organizations women members should be involved in the
management. Adequate encouragement may be given to them. The needed funds should be
provided and timely payments disbursed so that the scheme would be implemented
effectively and fruitfully.48
4.8 Child labour Welfare and Judicial Activism: -

47 AIR 1997 SC 3031

48 Id. p. 3048.

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The judiciary has almost brought a revolution in the life of child workers in India. It has
always remembered to expand and develop the law so as to respond to the hope and
aspirations of people who are looking to the judiciary to give life and content to law. The
judicial institutions in India have played a significant role not only for resolving interdisputes but also act as a balancing mechanism between the conflicting pulls and pressure in
the society. It has virtually played a vital role in the task of providing political, social and
economic justice to the poor child workers in this country .The judiciary has taken a stand
when there is no proper enactment for the welfare of the Child Labour and goes extent to
look out the problems of them and some of these case are there in which judiciary considers
as poverty is the reason for the exploitation of children and other economic factor and in this
situation we can left the child in the condition of lurch and they have judgement which gives
us good lesson to the society for the welfare of the children. Some of the cases are like
Labourers working on Salal Hydro- Project v State of Jammu and Kashmir (AIR 1984 SC
177),
In Labourers Working on Salal Hydro project v state of Jammu and Kashmir and
others49, Justice Bhagwati observed that construction work is a hazardous employment and
therefore under Article 24 of the Constitution, no child below the age of 14 years can be
employed in construction works by reason of the prohibition, enacted in Article 24 and this
constitutional prohibition must be enforced by the Central Government.
In this case honourable Supreme Court also agreed that child labour is a difficult problem and
it is purely on account of economic reasons that parents often want their children to be
employed to augment their meager earnings. And child labour is an economic problem, which
cannot be solved by mere legislation .Because of poverty and destitution in this country it
will be difficult to eradicate child labour, so attempts should be made to reduce if not to
eliminate child labour because it is essential that a child should have be able to receive proper
education with a view to equipping itself to become a useful member of the society and to
play a constructive role in the socio-economic development in the country. They must
concede that having regard to the prevailing socio-economic conditions it is not possible to
prohibit the child labour altogether and infact, any such move may not be socially or
economically acceptable to large masses of people .That is why Article 24 limits the
prohibition against employment of child labour only to factories, mines or other hazardous
employments clearly construction work is a hazardous employment and no child below the
49

AIR 1984 SC 177

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age of 14 years can therefore be allowed to be employed in construction work by reason of

the prohibition enacted in Article 24 and this Constitutional prohibition must be enforced by
the Central .
The Supreme Court also suggested that whenever the Central Government undertakes a
construction project which is likely to last for sometime, the Central Government should
provide that children of construction, workers which are living it or near the project site
should be give facilities for schooling because it is absolutely essential that a child should be
able to receive proper education with a view to equipping itself to become a useful member
of the society and to play a constructive role in the socio-economic development of the
country. We must concede that having regard to the prevailing socio-economic conditions, it
is not possible to prohibit child labour altogether and in fact; any such move may not be
socially or economically acceptable to large masses of people.
So we can say that literacy (absence of) is a main cause of child labour.
In Lakshmi Kant Pandey v Union of India50, it is obvious that in a civilized society, the
importance of child welfare cannot be over emphasized, because the welfare of the entire
community, its growth and development, depend on the health and well-being of its children.
Children are a supremely important national asset and the future well-being of the nation
depends on how its children grow and develop. The great poet Milton put it admirably when
he said Child show the man as morning the day and the Study Team on Social Welfare said
much to the same effect when it observed that the physical and mental health of the nation is
determined largely by the manner in which it is shaped in the early stages. The child is a soul
with a being , a nature and capacities of its own, who must be helped to find them, to grow in
their maturity , into fullness of physical and vital energy and the utmost breadth, depth and
height of its emotional intellectual and spirituality being; otherwise there cannot be a healthy
growth of a nation . Now obviously children need special protection because of their tender
age and physique, mental immaturity and incapacity to look after the usefulness. That is why
there is growing realization in every part of the globe that children must be brought up in an
atmosphere of love and affection and under the tender care and attention of parents so that he
must be able to attain full emotional intellectual , and spiritual stability and maturity and
acquire self-confidence and self respect and a balanced view of the role which they to play
in the nation-building process without which the nation or cannot develop and real prosperity
50

(1984) 2 SCC 244

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because a large segment of the society would be then be left out of the developmental
process,.
CONCLUSION
The brief survey of the above mentioned cases shows that the activism of the Indian Supreme
Court to protect the children from various type of exploitation. Although the Supreme Court
made laudable directions and suggestions in many instances to protect basic rights of poor
children, unfortunately these directions and suggestions are not followed and implemented by
the government machinery effectively. In this regards, the performance of the Indian
Judiciary stands out as a signal contribution to the implementation of human rights generally
and that of Child Rights in particular.
The judiciary has always made concrete efforts to safeguard them against the exploitative
tendencies of their employer by regularizing their working hours, fixing their wages, laying
down rules about their health and medical facilities. The judiciary has even directed the states
that it is their duty to create an environment where the child workers can have opportunities
to grow and develop in a healthy manner with full dignity in consensus of the mandate of our
constitution.
It transpires that Children deserve to be highly valued for the unique contribution they make
through just being children. Respect for children as a global ideal has been affirmed by the
United Nations Convention on the Rights of the Child. The UN General Assembly
unanimously adopted the Convention on the Rights of the Child on 20 November 1989 and it
entered into force or became legally binding on States Parties in September 1990.
As such implementation is being ensured through working of Committee on rights of the
Child. Committee examines reports time to time and suggests some suggestions if any and
state shall accordingly made changes in their laws.

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