About The Author
Alexy Joy is a student from Govt Law college Thrissur. She’s also an editor of LJRF VOICE
The Right of Children to Free and Compulsory Education Act or Right to Education Act 2009, makes it obligatory on the part of the government to ensure admission, attendance, and completion of elementary education by all children falling in the age bracket six to fourteen years. Essentially, this Act ensures free elementary education to all children in the economically weaker sections of society. 86th Amendment Act (2002) via Article 2 IA (Part Ill) seeks to make free and compulsory education a Fundamental Right for all children in the age group 6-14 years. Education is a significant step to achieving all other basic human rights. Education can help decrease poverty, reduce social inequalities, empower women and others marginalised, bring down discrimination and finally help individuals live life to their fullest potentials. It helps improve access to opportunities for a better life in terms of employment and business. It can also bring about peace and overall prosperity to a region. Therefore, education is one of the most important rights.
In Mohini jain .v. State of Karnataka 1992, a resident of Uttar Pradesh state challenged a notification issued by the Karnataka government that permitted private medical colleges to charge higher fees to students who were not allocated ‘government seats’. The Supreme Court of India held that the charging of a ‘capitation fee’ by the private educational institutions violated the right to education, as implied from the right to life and human dignity, and the right to equal protection of the law. In the absence of an express constitutional right, the Court interpreted a right to education as a necessary condition for fulfilment of the right to life under Article 21 of the Indian Constitution. In addition, the Court held that private institutions, acting as agents of the State, have a duty to ensure equal access to, and non-discrimination the delivery of, higher education. Court said that state must have a responsibility to discharge its duty of providing educational institutions in all places of the state’s territory to educate all its citizen. And also, court ordered that state must administrate the proper providing of educational institutions by itself or by giving to private education institutions to educate its citizens. And also if the private institutions charge capitation fee then it is considered as a violation of article 14. As per 201 5 research India occupies 92nd position in among 142 countries. Even the small nations are maintaining a proper educational system, till now India trying to reach its proper providing of education.
In T.Muhammed Faisi vs State Of Kerala on 29 July, 2020 Supreme Court upholds the RTE Act. By judicial decisions, right to education has been read into right to life in Article 21. A child who is denied right to access education is not only deprived of his right to live with dignity, he is also deprived of his right to freedom of speech and expression enshrined in Article 19(1) (a). The 2009 Act seeks to remove all those barriers including financial and psychological barriers which a child belonging to the weaker section and disadvantaged group has to face while seeking admission. “The Bench said: “It is true that, as held in the T.M.A. Pai Foundation as well as the P.A. Inamdar judgments, the right to establish and administer an educational institution is a fundamental right, as long as the activity remains charitable under Article 1 9(1) (g). However, in the said two decisions the correlation between Articles 21 and 21 A, on the one hand, and Article 19(1) (g), on the other, was not under consideration.
Further, the content of Article 21 A flows from Article 45 (as it then stood). The 2009 Act has been enacted to give effect to Article 21 A. For the above reasons, since the Article 1 9(1) (g) right is not an absolute right as Article 30(1), the 2009 Act cannot be termed as unreasonable.” Right to education has immense position in international aspects. The Universal Declaration of Human Rights (UDHR), adopted in 1 948, states in Article 26: ‘Everyone has the right to education’. Since then, the right to education has been reaffirmed in various international treaties including: UNESCO Convention against Discrimination in Education (1960).
Child Rights Act 2005
Children are the most vulnerable section because they are easily get tortured and harassed by others. The Commission for protection of child rights Act, 2005 is a law enacted by the Parliament of India, which provides for constitution of National commission and state commissions for the rehabilitation, prosperity, and wellness of children. The act was primarily enforced in Indian administered states and its union territories to protect child rights. The act further provides constitution for establishment of children’s court where the offenses against children rights or exploitation of child rights be trialled speedily. The constitution ensures the rights and protection of children through its various provisions. Children on the account of their sensitive age and immature age need special care and protection. They have specific rights and legal entitlements that are being recognized nationally and internationally. The constitution has recognized the rights of children to a great extent and included many articles dealing with the compulsory and free education, liberty and development in childhood, non-discrimination in educational spheres and prohibition of their employment in factories, mines and hazardous conditions.
Legislations for Protection of Child Rights
Various legislations are provided to protect the rights of children. Certain provisions in Indian penal code provides different types of rights to children. According to Section 82 of the Indian Penal Code, nothing is an offence which is an offence done by a child under the age of seven years and Section 83 states that, nothing is an offence which is done by a child above seven years of age and under twelve. Section 305, section 31 5, section 317,section 369,section 366A,section 372 and section 373 are the various provisions in Indian penal code provides different types of rights to children. Prohibition of Child Marriage Act 2006, is aimed to prevent child marriage and ensures that it is completely eradicated from society. Apprentice Act 1 961, implemented to prohibit the apprenticeship or training of children under the age of 14 years and for other minors there require a contract between the employer and the guardian. A person is qualified to be engaged in apprentice if he is not less than fourteen years and satisfies such standard of education and physical fitness.
Juvenile Justice Act 201 5 provides a special approach to the protection, treatment and development of children, this law mentions how a child should be protected in a home, without a home, begging etc… The children labour (Prohibition and regulation Act 1 986, prohibits the engagement of children in certain employment which is hazardous to the child who can affect the child mentally and physically. It regulates the conditions of work of children in other employment. The orphanages and other charitable homes (supervision and control) Act 1 960, provides the supervision and control over the orphanages, homes for the abandoned women. The Guardian and Wards Act 1860 deals with the qualification, appointment, and removal of guardians of children by the courts and is applicable to all the children irrespective of religion. Through this act, court ensures the protection of the child. Hindu Adoption and maintenance Act 1 956, generally dealt with the provisions for a Hindu adult to adopt a child and the Hindu law of maintenance to wives, parents, and children. Probation of offenders Act 1 958 helps to prevent the conversion of young offenders to obstinate criminals since there are chances for their transformation when they are subjected to jails along with criminals. POCSO ACT 2012, protects children from sexual harassment and offences. The Act provides for Special courts that conduct the trial in-camera and without revealing the identity of the child.
Supreme Court Judgments on Child Rights Protection
In M.C Mehta V. State of Tamil Nadu, Supreme Court passed the judgment states the direction to prohibit child labour in hazardous conditions. The judgment also stated that there has been no proper eradication of child labour by the state. In Sanjay Suri V. Delhi Administration ,The court laid down orders to transfer some guilty officers and laid down the rules to protect children in jails. In Vishal Jeet.v. Union of India ,Several directions were issued to end the sexual exploitation of children. The court issued directions to the state government to set up rehabilitation homes for the children found begging in the streets and also minor girls pushed into ‘flesh trade’ to protective homes. In Saritha Sharma. v. Sushil Sharma, the court held that in the issue relating to custody of children, paramount consideration should be given to the welfare of the children.
International Position of Child Rights
The United Nations Convention on the Rights of the Child (CRC) is the most comprehensive treaty on the rights of the child, and defines children in Article 1 as “every human being below the age of eighteen years, unless under the law applicable to the child, majority is attained earlier.” UNICEF is the UN agency focused on children’s rights. It was founded in 1946 after WWII. Today, it is active in more than 1 90 countries and territories supporting child health and nutrition, education and skill-building, safe water and sanitation, and much more. UNICEF is the world’s largest provider of vaccines. Save the child is one of the leading independent organizations for children (and one of the oldest with a founding date of 1 91 9), Save the Children focuses on healthcare, food, shelter, and learning and child protection services. Save the Children also provides emergency aid following conflicts and natural disasters.
