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According to constitution of India women and children are said to be as the most vulnerable segment of society. Article 15(3) provides the state to make special provisions for women and children in any matter and these special provisions will be based upon the reasonable classification doctrine of ‘equal to equals’. Article 23 provides prohibition of human trafficking and forced labour which is mostly done of women and children. Article 24 was constituted to prohibit the minor children from working into the hazardous factories. Also, with the importance of education in one’s life and with the vision of education to all “The Government of India” primarily emphasized over the need for compulsory education in India and during the framing of the constitution the right to education was added in the Directive Principles of the State Policy. Later when it became a subject to decline by the state in the 86th amendment 2002, it was added as Article 21(A) of the Indian Constitution to convert it as a fundamental right. But in 2009, a tremendous act i.e. Right to Education Act was passed to empower the Article 21(A) and to provide free and compulsory education to all the children under age 6-14 yrs. This act was passed with a goal to implement it in whole India and to form the infrastructure of the modern India by making the strong pillars of India i.e. its Children.
In spite of all such ambiguities which came into the implementation of this act and various efforts lead by the government, From time to time the apex court has also given its different judgements over the issue of right to education and child rights from making it as a fundamental right to its implementation both in rural as well as urban areas.
Some of the landmark judgements on child rights and RTE include-
- Lakshmi Pandey v. Union of India [AIR 1984 SC 469] – The apex court in this Public Interest Litigation considered the issue of alleged adoption agency malpractices and neglect when approving inter-country adoptions. The court in this judgement set forth safeguard such that adoptions by foreigners would be handled in a manner promoting children’s welfare and their right to family life.
- Shiela Barse v. Union Of India [AIR 1986 SC 1883] – In this case a social activist Ms. Sheela Barse forwarded to the supreme court with a copy of her write up titled “Jailing the mentally ill”. The write up focused upon the condition of lunatics (both child and adult) but were not criminals, committed to jail without fixing the date of hearing. The apex court entertained this as Public Interest Litigation and a notice was sent to the Government of West Bengal with also an instruction to appoint a commission to investigate the various issues rose and the commission made several recommendations as well as measures for coping up with these situations.
- C Mehta v. State of Tamil Nadu [JT 1990 SC 263] – In this case the court held that Under the national constitution and international instruments, including the convention on the rights of the child, the Indian government is required to ensure that the children do not get engaged in hazardous works. Looking into the cause of the child labour, poverty is the basic reason that compels parents to employ their children. Also, just imposing fine over the employer is not just enough, other than this the government owes these parents a duty of assistance to help them in removing their children from hazardous employment.
- Vishal Jeet v. Union of India[1990 (3) SCC 318] – The wit petition was filed seeking issuance of certain directions, to look into issues of Red Light areas and forced prostitution from a law enforced perspective, to rescue victims of commercial sexual exploitation and provide them with proper medical aid, shelter, education and training and also to look into the issues of Devdasi. The Apex court examined the constitutional provisions pertaining to right against exploitation, traffic in human beings and rights of children, principles enumerated by declaration of the Rights of the Child,1959.
- Mohini Jain v. Union of India[(1992) 3 SCC 666] – Right to life is the compendious expression for all those rights which the courts must enforce because they are basis of the dignified enjoyment of life. It extends to the full range of conduct which the individual is free to pursue. The right to education flows directly from right to life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it is accompanied by right to education. The state government is under an obligation to make endeavour to provide educational facility at all levels to its citizens.
- P Unni Krishnan v. State of Andhra Pradesh[1993(1) SC 645] – The Apex court narrowed the scope of right to education as it was given in the Mohini Jain’s case. The court observed that he right to education which is implicit in the right to life and personal liberty guaranteed by Article 21 must be construed in light of the directive principles. So far as to right to education is concerned, there are several articles in part IV of the constitution which expressly speak of it. The apex court also gave the reference of Article 41, 45 and 46.
- Gaurav Jain v. Union of India [1997(8) SCC 114] – In this case the judgement was delivered by a bench of two judges. Dissent was expressed by one of the judges on two points, one regarding directions passed by the other judge on the question of prostitution and its eradication and secondly on the nature and scope of Articles 142 and 145(5) of the constitution of India. After this a review petition was filed by Gaurav Jain and the first judgement was overruled by the second judgement. However, the directions made by the judges in the first judgement with respect to children of the prostitutes and established of the juvenile homes were upheld.
- Gita Hariharan v. Reserve Bank of India [(1999) 2 SC 228] – The Apex court in this case asserted the predominance of the child’s welfare in all considerations. The court held that although the father was alive, he was not taking any interest in the affairs of the child. In that case the mother was ruled to be the natural guardian of her minor child. The court also held that the provisions of Sec 6(a) of the Hindu Minority and Guardianship Act of 1956 along with Sec. 19(b) of the Guardian Constitution and Wards Act do not violates the Article 14and 15 of the constitution.
- Centre for Enquiry into Health and Allied Themes (CEHAT) & Others v. Union of India [2000 SC 301]- In this case Honourable Supreme Court took a unique role of actually monitoring the implementation of the law and issuing several beneficial directives over the course of 3 years during which the case was proceeding in court. This petition for regulation of the provisions of pre-natal diagnostic technology put the issue of sex selection and sex selective abortions and honourable court directed the government to implement the law against female foeticides with full determination.
- Apart from these cases a week ago a very recent and dynamic case of the “Right to Education” was seen in which a Delhi boy named as “Hritik” gets Prosthetic Arms (Artificial Limbs) under Right to Education The petition was filed in the Delhi High Court cited under Right to Education Act along with Sec 17(g) of Right to Person with Disability Act, 2006.
by Tanay Akash