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 in the present era. The judiciary plays an important role in the protection of fundamental rights of the citizen and non-citizens alike. The twin safeguards of equality before law and equal protection of laws 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 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, 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.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
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 Nadu The Supreme Court directed that children should not be employed in hazardous jobs in factories for manufacture of match boxes and fireworks, and positive steps should be taken for the welfare of such children as well as for improving the quality of their life.
In Goodricke Group Ltd v Center of West Bengal 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 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 Pradesh 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.
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 India Also known as the Asiad Workers case. The Supreme Court held that though the Employment of Children Act, 1938 did not include the construction work on projects because the construction industry was not a process specified in the Schedule to the Act, yet, such construction was a hazardous occupation and under Art.24 children under 14 could not be employed in a hazardous occupation. The right of a child against exploitation under Art.24 was enforceable even in the absence of implementing legislation, and in a public interest proceeding
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 Kashmir wherein 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 Juvenile Justice
The Juvenile Justice (Care and Protection) Act, 2000 is enacted as human rights legislation and it is now in force in all State uniformly, repealing the entire Children’s 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 Ms.Sheela Barse, a dedicated social worker took up the case of helpless children below age of 16 illegally detained in jails. She petitioned for the release of such young children from jails, production of information as to the existence of juvenile courts, homes and schools and for a direction that the District judges should visit jails or sub-jails within their jurisdiction to ensure children are properly looked after when in custody. The Court observed that children in jail are entitled to special treatment. Children are national assets and they should be treated with special care. The Court urged the setting up of remand and juvenile homes for children in jails. In Sheela Barse v Secretary Children Aid Society the Supreme Court came forward to protect the rights of the children in the observation homes.
5 Adoption of Children
Adoption concerns two of our basic human concerns identity and family. A child’s 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.
The Activist Supreme Court of India in Lakshmikant Pandey v Union of India. This writ petition has been initiated on the basis of a letter addressed by one Laxmi Kant Pandey, an advocate practising in this Court, complaining of mal-practices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The letter referred to a press report based on “empirical investigation carried out by the staff of a reputed foreign magazine” called “The Mail” and alleged that not only Indian children of tender age are under the guise of adoption “exposed to the long horrendous journey to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the Shelter and Relief Homes, they in course of time become beggars or prostitutes for want of proper care from their alleged foreign foster parents.” The petitioner accordingly sought relief restraining Indian based private agencies “from carrying out further activity of routing children for adoption abroad” and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents. This letter was treated as a writ petition and by an Order dated 1st September, 1982 the Court issued notice to the Union of India the Indian Council of Child Welfare and the Indian Council of Social Welfare to appear in answer to the writ petition and assist the Court in laying down principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents and if so, the procedure to be followed for that purpose, with the object of ensuring the welfare of the child. In this case the Supreme Court held that any adoption in violation of or non-compliance with may lead adoption to be declared invalid and expose person concerned with to strict action including prosecution. For years, social activists have used these directions to protect children and promote desirable adoptions. The Government of India framed a national policy in this regard.
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 Bachpan Bachao Andolan v Union of India writ petition filed by HRLN, Suprem Court on 18.04.2011 has ordered for implementation of suggestions put forth during the hearing of this case, which will introduce significant reforms in existing child protection regime. The petition was originally brought in 2006 on issue of abuse and exploitation of children in circus industry. Court has ordered Central Government to bring a notification prohibiting employment of children in circus, to conduct raids to rescue children already working in circuses and frame proper scheme for their restoration. During the hearing in this case, several recommendations were put forth by petitioner and respondent, aimed on reforming existing legal and procedural mechanism on child protection. This recent order is just one among the several orders which may be given by Hon’ble Supreme Court in due couese of time as Hon’ble Court has made clear its intention to deal with issue of childrens exploitation in a long term and systematic manner. Assuring to deal with childrens exploitation firmly, Supreme Court has observed: “We plan to deal with the problem of childrens exploitation systematically”.
In Vishal Jeet v. Union of India 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. In Gaurav Jain v. Union of India, The Supreme Court held that the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them. The Court directed for the constitution of a committee to formulate a scheme for the rehabilitation of such children and child prostitutes and for its implementation and submission of periodical report of its Registry. 7. Sakshi v Union of India In this Public Interest Litigation matter, the Supreme Court of India asked the Law Commission to consider certain important issues regarding sexual abuse of children submitted by the petitioner and the feasibility of amendment to 375 and 376 IPC.
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.
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.
As such in the M.C. Mehta v. State of Tamil Nadu and Goodricke Group Ltd v Center of West Bengal Supreme Court of India emphasized on national Constitution and international instruments, including the Convention on the Rights of the Child, the Indian government is required to ensure that children do not engage in hazardous work. In Lakshmi Kant Pandey v Union of India with object of ensuring the welfare of the child J. Bhagwati directed the Government and various agencies to follow some principles as their constitutional obligation to ensure the welfare of the child. Also judiciary has taken the lead to save the child from exploitation and improve their conditions. To mention a few, the Asiad case (1981), L.K.Pandey case (1994), M.C.Mehtas case (1991), Vishal Jeet v. Union of India (1990), and Gaurav Jain v. Union of India (1997) are some of the famous decisions where the judiciary has shown enough courage to uphold the interests of the children and spared no one to improve the working conditions of the child workers. 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.
- 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.
- 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.
- Word secular is inserted by the Constitution (42nd Amendment) Act, 1976 (w.e.f. 03.01.1977).
- 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.
- Article 24: No Child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
- Article 45 of the Indian Constitution: State shall endeavour to provide, within period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years.
- AIR 1993 SC 2178.
- AIR 1991 SC 417.
- Retrieved from < http://www.hrcr.org/safrica/childrens_rights/India.html> last visited on 27th Nov. 2011, at 15:41 IST.
- 123 CTR 516..
- AIR 1993 SC 2178.
- 12AIR 1982 SC 1473.
- Retrieved from <http://www.hrcr.org/safrica/childrens_rights/India.html> last visited on 27th Nov. 2011, at 15:41 IST.
- AIR 1987 SC 177.
- Juvenile Justice (Care and Protection) Act was enacted in 2000 by repealing the Juvenile Justice Act 1986.
- Article 10 of the International Convention on Civil and Political Rights, 1966.
- 1986 3 SCC 596.
- Retrieved from <http://www.hrcr.org/safrica/access_courts/India/Indiacases.html> last visited on 27th Nov. 2011, at 15:40 IST.
- AIR 1987 SC 656.
- Asha Bajpai, Adoption Law and Justice to the Child, Center of Child and the Law NLSIU, Bangalor, 1996, p. 1.
- AIR, 1986, SC, p. 1272.
- Retrieved from < http://www.manupatrainternational.in/supremecourt/1980-2000/sc1984/s840054.htm> last visited on 27th Nov. 2011, at 15:43 IST.
- Retrieved from <http://hrln.org/hrln/index.php?option=com_content&view=article&id=644:supreme-court-sets-ground-for-significant-reforms-in-existing-child-protection-regime-bans-use-of-children-in-cicus> last visited on 27th Nov. 2011, at 15:40 IST.
- AIR 1990 SC 1413.
- AIR 1997 SC 3051.
- Retrieved from < http://www.hrcr.org/safrica/childrens_rights/India.html> last visited on 27th Nov. 2011, at 15:42 IST.
- 1999 8 SCC 591.
- Retrieved from <http://www.hrcr.org/safrica/childrens_rights/India.html> last visited on 27th Nov. 2011, at 15:42 IST.
- Y. Vishnupriya, Judicial Activism for Protection of Children in India, Socio-legal Journal, Vol.37 (1), Jan. 2011, p. 150.