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Report No. 259

A. Fundamental Rights and Rights of Children under Six

3.2.1 Article 15(3) provides for affirmative action for women and children and is of great significance under which several beneficial laws and programmes have been passed. Jurisprudence developed around Article 21 of the Constitution by the Supreme Court of India underlies the primary importance of early childhood developments. As right to food, nutrition and health People's Union for Civil Liberties v. Union of India & Others (Civil) no. 196/2001 have been judicially crafted as being part and parcel of the Right to Life to which every citizen, including a child is entitled to.

It is taking this approach that right to free education up to the age of 14 years was read into Article 21 by the Supreme Court of India in Unni Krishnan v. State of Andhra Pradesh (1993 AIR 2178). The Court while creating such right made an important observation that Right to Life has to be read in light of Directive Principles of State Policies, viz. Articles 41, 45 and 46.

Eventually, given the specificity of the needs of children under six, and the value of having a positive right ensuring to the child the right to full development, Article 21-A was inserted through the 86th Amendment Act, 2002 within the Constitution, recognising the fundamentality of the right to education for children between the age group of six to fourteen. Although the 86th Amendment brought a Directive Principle of State Policy, ignored until now, within the folds of Part III of the Constitution, it excluded children below the age of six, thus denying them education for proper growth and development.

3.2.2 The Report of the National Commission to Review the Working of the Constitution (NCRWC) published in 200227 was of the view that the Right to Free and Compulsory Education should be extended to all children up to the age of 14 years, and not only from the age of 6 onwards. The NCRWC recommended the inclusion of the following provision in Part III of the Constitution:

"30-C. Every child shall have the right to free education until he completes the age of fourteen years; and in the case of girls and members of the Scheduled Castes and the Scheduled Tribes, until they complete the age of eighteen years." Recognizing that interests involved in early childhood development are complex and interwoven and cannot be taken care of by enacting Right to Education alone, the NCRWC went further and recommended insertion of Article 24-A in Part-III of the Constitution.

The new provision of Article 24-A was to read as, "Every child shall have the right to care and assistance in basic needs and protection from all forms of neglect, harm and exploitation" This insertion was based on translating Directions of Article 39(f) into an enforceable right. Expanding reach of Article 21-A to cover children under six and creating a new right as suggested by NCRWC were very positive steps towards creating a legal regime responsive to the needs of ECD.

27 The National Commission to Review the Working of the Constitution, also known as the Justice Venkatachaliah Commission, was set up by a Government Resolution dated 22 February, 2000. The Commission was set up to examine as to how best the Constitution could respond to the changing needs of modern India within the framework of Parliamentary democracy, and to recommend changes to the Constitution without interfering with its basic structure or features. Available at http://lawmin.nic.in/ncrwc/finalreport/volume1.htm

3.2.3 However, these recommendations did not make their way into the Constitution, and as it stands today, issues relating to interests and welfare of young children remains locked in Part IV of the Constitution that incorporates Directive Principles of State Policy.



Early Childhood Development and Legal Entitlements Back




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