JUDICIARY AND CHILD RIGHTS: A CRITICAL ANALYSIS WITH CASE LAWS
Ashutosh Anand and Kaustubh Kumar,1st Year, National University of Study and Research in Law, Ranchi
In biological terms, a child (plural children) is a human being between the phases of birth and adolescence or between the developmental period of infancy and teenager. Children have similar general human rights as adults and addition to that, specific rights that acknowledge their particular needs. Children are neither the helpless objects of charity nor are they the property of their parents. They are human beings and subjugated to their rights. According to the Convention on the Rights of the Child (CRC), 1989, the definition of a child is "any human being below the age of eighteen years, unless under the law applicable to the child, the majority is attained earlier."
Children's rights comprise their right of human identity, association with either parent in addition to the basic needs for food, universal state-paid educational facilities, healthcare facilities, physical protection, and criminal laws suitable for the age and development of the child, equivalent protection of the civil rights of the child, and freedom from discrimination and differentiation based on the child's gender identity, sexual orientation, race, colour, nationality, disability, ethnicity, caste, and creed, or any other characteristic.
The onus of safeguarding and sheltering the child rights is on the government in particular and society in general. Despite this, protection and penalizing mechanism for violation of child rights rest on the judiciary's shoulders. Indian judiciary actively played a crucial role in protecting child rights and sometimes come forward with new innovative ideas to prevent child abuse, child trafficking, etc.
RIGHT TO EDUCATION versus CHILD LABOUR
Child labour and the Right to Education are the two faces of the same coin. If a child is indulged in child labour, then he cannot get a quality education, or even if he performs both things simultaneously, then it will turn out to be mental as well as physical torture for the child. Hence, the Constitution of India restricts child labour in hazardous industries in Article 24, while Article 21A, 45, and 51A(k) together impose a duty on the state and parents for a child's education. The Supreme Court in Unni Krishnan J.P. & Ors. vs. State of Andhra Pradesh & Ors.declared that the right to receive education by child workers is an integral part of Article 21. Although, this right is not absolute. Its parameters and contents have to be determined and inspected in the light of Articles 41 and 45. Every citizen of India has a right to free education until he attains the age of fourteen years. Henceforth, his right to education is subject to the development of the state or his own limits of economic capabilities.
Child labour is the malice that deprives children of their childhood and happiness and places harsh responsibilities on their soft shoulders. Child labour harms a child physically, mentally, emotionally, and socially. In M.C. Mehta vs. State of Tamil Nadu, the Supreme Court considering child labour prevalent in India, stated no children should be employed in hazardous works for manufacturing matchboxes and fireworks. The apex court also directed the government to take positive steps for the betterment of such children. Similarly, in Goodricke Group Ltd vs. State of West Bengal, the Supreme Court held that it is on the Central government and State or Union Territory governments to raise necessary resources for providing free education.
It is generally seen that poor parents strive to increase their family income by employing their children. While considering it in Salal Hydro Project vs. Jammu and Kashmir, the apex court stated that child labour is an economic problem. So, it is not feasible in prevailing conditions to prohibit child labour. The Court further noted that to eliminate child labour, it is necessary to eradicate poverty and destitution first.
CHILD SEXUAL ABUSE
In 2006, a petition was filed in the apex court on the issues of exploitation, abuse, and inhuman treatment of children in the circus industry. After observing this, the Supreme Court ordered the government to bring a circular prohibiting the employment of children in circuses. Accepting the submissions made by the Solicitor General, the Court further directed the government to rescue the children already working in circuses by conducting raids and formulate a proper policy for their restoration.
In Vishal Jeet vs. Union of India, the Supreme Court came across a petition seeking directions to the Central Bureau of Investigation to “bring all inmates of the red-light areas and also those engaged in 'flesh trade' to protective homes of the respective States and provide them with proper medical aid, shelter, education and training in various disciplines of life so as to enable them to choose a more dignified way of life.” The petition further mentioned bringing the children of those prostitutes and other children found begging in the streets, and the girls pushed into 'flesh trade' to protective homes and then to rehabilitate them. Though the apex court rejected the petitioner's request, it issued directions to the state and central governments directing them to take appropriate and speedy action to eradicate child prostitution. The Court also directed respective governments to set up rehabilitative homes with well-trained social workers, psychiatrists, and doctors.
Taking into account the plight suffered by the children of the prostitutes, the apex court in Gaurav Jain vs. Union of India stated that the children of the prostitutes also have the right to protection, care, dignity, equality of opportunity, and rehabilitation similar to any other citizen of this nation. To rehabilitate them and make them also a part of the mainstream society, the Court formulated a scheme and constituted Child Development and Care Centres (CDCC) along with their advisory and monitoring committees at Central, State, and Local levels.
SUPREME COURT ON OTHER ISSUES RELATED TO CHILD RIGHTS
In India, before the case of Laxmi Kant Pandey vs. Union of India, there was an absence of regulation on children's intercountry adoptions in India. This case highlighted the malpractices and exploitations committed on children in the veil of intercountry adoptions. Since this judgment, international adoptions started following the regulations of the Guardians and Wards Act, 1890.
In 2015, in Roxann Sharma vs. Arun Sharma, the Supreme Court dealt with the custodial rights of a child. In its landmark judgment, the Court ruled that the child's custody below five years of age should be given to the mother unless the father proves that the child's custody to a mother would hinder the child's upbringing. The Court also added that the burden of proof would lie on the father to prove that the mother is not suitable for the child's custody. Furthermore, in Gita Hariharan vs. Reserve Bank of India, the apex court viewed both father and mother as the child's natural guardian. The Court remarked that the father, by reason of a dominant personality, cannot be ascribed to have a favoured right over the mother in the matter of guardianship since both fall within the same category.
In Hardev Singh vs. Harpreet Kaur, the apex court, while considering the rights of a child to marry, ruled out that a male between 18 to 21 years cannot be punished for contracting a child marriage if a female is an adult. The Court observed that "The intention behind punishing only male adults contracting child marriages is to protect minor girls." Moreover, the SC mentioned that neither does Section 9 of the Prohibition of the Child Marriages Act, 2006 punish a woman for marrying a male child, nor a male child for marrying a woman.
The recent cases cited above and the old precedents depict a crystal-clear picture of how judiciary time-to-time actively came forth and helped children by interpreting various statutes in a child-friendly manner and directing the government to take cognizance of social ills prevalent in the society that harm a child's well-being. Nelson Mandela's words, "there can be no keener revelation of a society's soul than the way in which it treats its children," shows how society affects the well-being of a child and develops him mentally, physically, and socially to live a life.
Nearly 41% of the population of India is under-eighteen years of age that accounts for the largest child population in any country. To help such a vast population of children, there is a dire need for huge machinery and infrastructure. Therefore, not only the judiciary but also the other institutions of the state like the executive and legislature shall strive to bring every child in the ambit of welfare so that they too can enjoy and avail themselves of their rights and privileges. In this way, the children, as well as the society, will develop and help further in the overall development of the nation.
 Unni Krishnan, J.P. v. State of A.P., (1993) 1 SCC 645 : AIR 1993 SC 2178  M.C. Mehta (Child Labour matter) v. State of T.N., (1996) 6 SCC 756 : 1997 SCC (L&S) 49 : AIR 1997 SC 699  Goodricke Group Ltd. v. State of W.B., 1995 Supp (1) SCC 707 : (1995) 98 STC 32 : (1995) 50 ECC 138  Salal Hydro-Electric Project v. State of J & K, (1984) 3 SCC 538 : 1984 SCC (L&S) 577  Bachpan Bachao Andolan v. Union of India, (2011) 5 SCC 1  Vishal Jeet v. Union of India, (1990) 3 SCC 318  Id.  Gaurav Jain v. Union of India, (1997) 8 SCC 114  Laxmi Kant Pandey vs. Union of India, 1984 AIR 469  Roxann Sharma v. Arun Sharma, (2015) 8 SCC 318  Githa Hariharan v. Reserve Bank of India, (1999) 2 SCC  Hardev Singh v. Harpreet Kaur, 2019 SCC OnLine SC 1514  Id.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)