The Constitution and the Child

Article 23. Traffic in human beings and begar and other similar forms of forced labour are prohibited, and any contravention shall be an offence punishable in accordance with law. It binds private persons, and it is the constitutional root of the bonded labour and trafficking legislation, worked in [Manual Scavenging and Bonded Labour] and [Trafficking and Prostitution].

Article 15(3). Nothing in article 15 shall prevent the State from making any special provision for women AND FOR CHILDREN. Every child-protective statute rests on it, and it is worked as a clause in [Article 15(3): Special Provision for Women].

And the general rights that reach a child. Articles 14, 20, 21 and 22 apply to a child as to anybody, and article 21's expansion supplies the right to health, to nutrition, to shelter and to a clean environment, on which see [What the Courts Built out of Article 21].

The Part IV provisions

Article 39(e). The State shall direct its policy towards securing that the health and strength of workers, men and women, and the TENDER AGE OF CHILDREN are not abused, and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

Article 39(f). That children are given opportunities and facilities to develop in a healthy manner and in conditions of FREEDOM AND DIGNITY, and that childhood and youth are protected against EXPLOITATION and against MORAL AND MATERIAL ABANDONMENT.

Article 39(f) is the one to quote. It is the constitutional source of the whole child protection apparatus: the phrase "moral and material abandonment" is the reason the Juvenile Justice Act's child in need of care and protection exists, and "freedom and dignity" is the standard by which an institution is judged.

Article 45, as substituted in 2002. The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years. Before 2002 it required free and compulsory education for all children until fourteen, and the substitution moved that obligation into article 21A as a right.

Article 47. The raising of the level of nutrition and the standard of living and the improvement of public health, which is the provision behind the mid-day meal and nutrition programmes.

Article 46. Special care for the educational and economic interests of the weaker sections, which reaches a child of a Scheduled Caste or Scheduled Tribe.

The fundamental duty

Article 51A(k), inserted in 2002. It shall be the duty of every citizen who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years.

Why it was inserted with article 21A. Because compulsory education has two addressees: the State, which must provide, and the parent, who must send. The duty is not enforceable of itself, since Part IVA is not justiciable, but it informs the construction of the Act of 2009 and of the child labour legislation.

And note the symmetry of the Eighty-sixth Amendment. One right in Part III, one direction in Part IV and one duty in Part IVA, all about the same subject, which is the only time the Constitution has been amended in all three Parts at once.

Reading the two Parts together

The technique. A Directive Principle is unenforceable by article 37, but it supplies the standard by which a restriction is judged reasonable and the object by which a statute is construed. Articles 39(e) and 39(f) have done exactly that work in the child labour cases.

The sequence in the child labour cases. Article 24 forbids hazardous employment below fourteen; article 39(e) and 39(f) supply the reason; article 45 as it then stood supplied the alternative, which is school; and M.C. Mehta v. State of Tamil Nadu built directions out of all four. That is [The Courts and the Enforcement against Child Labour].

And the honest observation. Article 24 has been in force since 1950 and child labour was not prohibited outside factories, mines and hazardous work until 2016. A prohibition that reaches only the formal sector reaches almost none of the children in it.

A worked example

MU sets: "Rights of the Child are safeguarded by the Constitution of India and several laws enacted by the Parliament. Discuss." Fifteen marks.

Split the sentence in the first line. The Constitution's provisions, and the statutes made under them.

Part III first. Article 24, absolute, binding private employers, confined to factories, mines and hazardous work, age fourteen. Article 21A, from 2002, six to fourteen, preceded by Mohini Jain and Unni Krishnan. Article 23, trafficking and forced labour, binding private persons. Article 15(3), the enabling clause. And articles 14, 21 and 22 as they reach anybody.

Part IV next. Article 39(e), the tender age of children not to be abused; article 39(f), development in freedom and dignity and protection against exploitation and against moral and material abandonment; article 45 as substituted, early childhood care until six; and articles 46 and 47.

Part IVA. Article 51A(k), the parent's duty, and the symmetry of the Eighty-sixth Amendment across all three Parts.

Then the statutes, one line each. The Juvenile Justice Act 2015; POCSO 2012; the Right to Education Act 2009; the Child and Adolescent Labour Act 1986 as amended in 2016; the Prohibition of Child Marriage Act 2006; and the Commissions for Protection of Child Rights Act 2005.

And the critical close. That the constitutional scheme is complete on paper; that article 24 left most working children outside it until 2016; that article 21A stops at fourteen, which is where child marriage and child labour begin; and that the statutes create authorities the States have to staff.

What this does NOT mean

It does not mean article 24 prohibits all child labour. It prohibits employment below fourteen in a factory, mine or other hazardous employment; the general prohibition came from the labour statute in 2016.

It does not mean article 21A created the right to education. Mohini Jain and Unni Krishnan had located it in article 21 a decade earlier; article 21A gave it a text and a fixed range.

It does not mean article 51A(k) can be enforced against a parent. Part IVA is not justiciable; the enforceable obligation is on the State, and on a parent only through the Act of 2009 and the labour law.

And it does not mean Part IV is decorative here. Articles 39(e) and 39(f) are quoted in almost every judgment in this topic and supply the standard the statutes are read against.

Quick revision

Part III: article 24, no child below FOURTEEN in a factory, mine or other hazardous employment, absolute and binding private employers; article 21A, from the 86th Amendment 2002, free and compulsory education SIX TO FOURTEEN, preceded by Mohini Jain 1992 and Unni Krishnan 1993; article 23, traffic in human beings and forced labour; article 15(3), special provision for women AND CHILDREN; and articles 14, 20, 21 and 22 generally.

Part IV: article 39(e), the tender age of children not to be abused and no avocation unsuited to age or strength; article 39(f), development in a healthy manner and in FREEDOM AND DIGNITY, and protection against EXPLOITATION and MORAL AND MATERIAL ABANDONMENT; article 45 as substituted in 2002, early childhood care and education until SIX; articles 46 and 47.

Part IVA: article 51A(k), the duty of a parent or guardian to provide opportunities for education between six and fourteen. The 86th Amendment touched all three Parts at once. Technique: Part IV is unenforceable under article 37 but supplies the standard of reasonableness and the object of construction, which is what articles 39(e) and 39(f) do in the child labour cases.

Test yourself

1. Set out article 24 and state four things about it. That 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. It is absolute, with no exception or reasonable-restriction clause; it binds private employers directly; it is confined to factories, mines and other hazardous employment, so domestic work, agriculture and small workshops were outside it until 2016; and its age of fourteen is why the labour statute defines a child as a person below fourteen.

2. What did the Eighty-sixth Amendment do? It inserted article 21A, making free and compulsory education for children of six to fourteen a fundamental right; substituted article 45, which now requires provision for early childhood care and education until a child completes six; and added article 51A(k), the duty of a parent or guardian to provide opportunities for education to a child between six and fourteen. It is the only amendment to touch Parts III, IV and IVA on the same subject at once.

3. Quote article 39(f) and say why it matters. That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity, and that childhood and youth are protected against exploitation and against moral and material abandonment. It is the constitutional source of the child protection apparatus: "moral and material abandonment" is why the child in need of care and protection exists, and "freedom and dignity" is the standard by which an institution is judged.

4. How does an unenforceable Directive Principle do work in this field? Article 37 makes Part IV unenforceable by a court, but a Directive Principle supplies the standard by which a restriction is judged reasonable and the object by which a statute is construed. Articles 39(e) and 39(f) have been used in exactly that way in the child labour cases.

5. State the critical observation about article 24. That it has been in force since 1950 and prohibits employment only in a factory, mine or other hazardous work, so it left domestic service, agriculture and small workshops untouched, and a general prohibition on the employment of a child below fourteen arrived only with the amendment of the labour statute in 2016.