THE ROLE OF CONSTITUTIONAL COURTS IN PROTECTING MINORITY RIGHTS BY - V. SHUDARSHANA
THE ROLE OF CONSTITUTIONAL COURTS
IN PROTECTING MINORITY RIGHTS
AUTHORED BY - V. SHUDARSHANA
IV BBA LLB
KLE Law College
“The child is a soul with a being, a nature and capacities of its own,
who must be helped to find them, to grow into their maturity, into fullness of
physical and vital energy and the utmost breadth, depth, and height of its
emotional, intellectual and spiritual being; otherwise, there cannot be a
healthy growth of the nation.” - Justice P.N Bhagwati (Former CJI).
Abstract:
The
rights provided in the Constitution of India under the ‘Fundamental Rights’
include all children and children of Indian citizens. The constitutional courts
have played a central role in the realization of these rights by providing its
own interpretations of the constitution to protect the best interest of
children pursuant to both the constitutional provisions and the scant international
human rights treaties. Protecting minor rights is indeed a multifaceted task
that involves consideration of many factors, which are in detail explored in
relation to India’s constitutional courts in this paper. Also, it analyzes the
constitutional provisions forming the basis of child rights, the legal
enactments that stand erected on these provisions, and the landmark judgments
that define and reshape the current child protection situation in India. In
order to examine the extent to which the rights of children have been protected
by the courts, passage to landmark judgments and Public Interest Litigation
(PIL) mechanism the key issues like child labor, exploitation and abuse has
effectively been addressed though courts have confronted with several implementation
issues and challenges and new emergent threats have posed on child protection.
In the conclusion, the author focuses on the discussion of the further work and
increases the demand for further active involvement of the judicial branch for
the protection of children’s rights, which is essential for the development of
a fair and egalitarian society.
Introduction:
Efficient
and effective protection of the rights of the children is an important
component of any legal system, especially in countries like India, where
judiciary plays an important role in protection of the children’s rights. It is
imperative to note the constitutional provisions of the Indian Constitution,
and other legislations as well as court judgments which is the framework of
safeguarding the rights of the children in India. To analyze this let us
explore attributes of constitutional law related to protection of rights of the
minors by the constitutional courts in India, some major judicial decisions in
the area, the legislations in force and the limitations in such measures.
Constitutional
Safeguards
Thus
it can be said there is ample legal protection to children’s rights envisaged
under Indian Constitution’s section 17. The constitution of the people’s
republic of Uganda has section 14 which touches on the aspect of discrimination
on grounds of sex, not only that but the same constitution gives every person
including a child the right to equal protection before the law. Moreover, in
order to protect children at work, Article 24 also places restrictions on
employment of children below the age of fourteen years in any hazardous work.
These constitutional provisions form the core in safeguarding children against
any form of abuse.
Legislative
Measures
However,
over the years, several legislative frameworks exist to support the
constitutional provisions for children rights in India. The Juvenile Justice
(Care and Protection) Act 2000, is another important piece of legislation,
which puts in place comprehensive regulation of the care, protection and
rehabilitation of Juveniles. The Indian legislation, the Child Labour
(Prohibition and Regulation) Act, 1986 has a sectional definition of child as
any person who is below the age of fourteen years and their employment is
banned in certain vocations. In addition, the protection of children from
Sexual Offences in Act (POCSA) 2012 provide measures in regard to sexual abuse
on children as well as exploitation.
Role of Judiciary
in Child Protection
The
judiciary in India has not lagged behind in handling matters that arise as a
consequence of child abuse. In the recent past, judicial activism has reared
its head in advocating for children and passing laws such as those concerning
sexual exploitation, trafficking in children, and abuse. The courts, therefore,
have not only legislated by applying the existing laws but have also enumerated
them to adapt to the new developments.
Landmark
Judgments
Some
of the landmark judgments that saw new pages added to this part of the law
helped in protecting children’s rights in India. It is also important to review
the decision Banka v. Union of India: the Supreme Court ordered the compliance
of recommendations that brought radical changes to the work of the government
in the sphere of child protection. In the same manner, in Gaurav Jain v. Union
of India, the apex court of the country held that children of prostitutes are
equally entitled to claim maintaining the rights to liberty, protection and
care, non-exploitation, and support for their proper upbringing free from any
discrimination.
Public Interest Litigation (PIL):
The
Public Interest Litigation (PIL) has been a key litigation around which the
judiciary has been placed on several issues affecting large segments of the
community, including children. PIL empowers the common person to go to the
courts in order to vindicate the rights of those who cannot do so because they
lack capacity or knowledge on the legal process. It has been used to address
several child rights grievances by ensuring that it leads to judicial action on
the matters.
Issue and
Challenges
Speaking
of the key issues in the protection of children’s rights in India there are
several of them even though this country has a strong legal basis and proactive
judiciary. Social problems that include child traffic, child labor and sexual
exploitation of children remain prevalent in society. Another dilemma that the
judiciary encounters is not only responding to such problems but also in
ensuring that laws and policies are properly enforced.
Conclusion
The
constitutional courts in India have indeed had an important role to play in the
rights of children including the right to be protected. Constitutional
protection, legal enactments, and anticipatory judicial actions have been
approved in a bid to protect children’s rights. However, sustenance is needed
to mitigate the progressive threats and guarantee the sound operation of
legislation. Nonetheless, the judiciary’s promise to uphold the sanctity of
children rights is paramount in engineering a just society for future
generations.
Article
?
Bajpai, A. (2006). Child Rights in India:
Law, Policy, and Practice. Oxford University Press.
?
Singh, U. K. (2013). Child Rights and the
Constitution. Economic and Political Weekly, 48(20), 18-21.
Reports and Papers
?
National Commission for Protection of
Child Rights (NCPCR). "Report on Child Rights." Available at: NCPCR
website.
?
Law Commission of India, "Report No.
259 on Early Childhood Development and Legal Entitlements," 2015.
Books
?
Sathe, S.P. (2003). Judicial Activism in
India: Transgressing Borders and Enforcing Limits. Oxford University Press, New
Delhi.
?
Bhuwania, A. (2016). Courting the People:
Public Interest Litigation in Post-Emergency India. Cambridge University Press.