Report No. 259

C. Perspectives from other jurisdictions

3.4.1 It is important to note that constitutions in many developing countries have specific provisions dealing exclusively with children and cast express obligations on the State to provide for care and development of its children including children under six years age.

3.4.2 Chapter two of the Constitution of South Africa that deals with a Bill of Rights for the people of South Africa considers 'children' as any child below the age of 18 years. Article 28 expressly provides for rights of children. Article 28 provides for the rights of the child to basic nutrition, health services, shelter and social services. By making right of the child to alternate care, basic nutrition, basic education, health services, shelter and social services constitutional rights, South Africa makes rights of children the primary responsibility of the State.

These rights have also been made enforceable against the State. Article 28(1)(b) specifically upholds that every child has the right to family care or parental care or appropriate alternate care when the child is removed from the family environment. By this provision, the primary obligation of care is cast upon the family or parents and in situations where such parental care is lacking, the Constitution casts an express obligation on the State. Government of the RSA v Grootboom, 2001 1 SA 46 (CC) par 77.

3.4.3 In somewhat similar approach, Article 6 of its Constitution of Brazil determines, inter alia, that education, health and food are social rights; and that it is the duty of the family, the society and the State to ensure to children and adolescents, with absolute priority, the right to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, freedom, and family and community life, as well as to guard them from all forms of negligence, discrimination, exploitation, violence, cruelty, and oppression.29

In addition, article 229 of the Constitution dictates that it is the duty of the parents to assist, raise, and educate their underage children. Paragraph 1 of article 227 of the Constitution further establishes that the State must promote full health assistance programs for children and adolescents and allows the participation of non-governmental entities, and determines that the State must allocate a percentage of public health care funds to mother and child assistance.

This provision also ensures special care for children who suffer from physical, sensorial or mental handicap. Health in Brazil is considered to be a right of all and duty of the State.30 Article 198 of the Constitution determines that health actions and public services are to be integrated in a regionalized and hierarchical network and constitute a single system (SistemaÚnico de Saúde) organized according to the directives established in the Constitution to ensure better health care for all citizens inclusive of children.

29 Article 227, Constitution of the Federal Republic of Brazil.

30 Article 196, Constitution of the Federal Republic of Brazil.

3.4.4 Cuba is another interesting model, whereby Article 9(b) of the Constitution of the Republic of Cuba creates a wide obligation on the State. It provides that the state will makes provisions to ensure that no child lacks schooling, food and clothing. Article 44 makes it a state responsibility to provide day-care services to the children and Article 51 requires the state to provide free education to all, children or adults.

3.4.5 In nutshell what emerges from foregoing is that there exists a culture that creates constitutionally created obligation in states and parents for protecting and fostering ECD.

3.4.6 No doubt that the Constitution of India in its entirety espouses a welfare approach towards children wherein the child under six is provided a safe and healthy environment for full growth and development to its human potential. However, most of this, especially in relation to young children, remains only a promise. The Directive Principles of State Policy give insights into the intent of the constitution framers-that there must be a progressive realisation of the right in favour of children under six.

But after sixty-five years of the Constitution's working, the time has come to translate some of these principles into justiciable rights. In this regard, it is suggested and as would be discussed in later chapters of this work that towards creating such justiciable rights in favour of under-sixes, lights could be drawn from South African, Brazilian and Cuban Constitutional law and constitutional practices.

Also, taking cue from these jurisdictions the need may be considered for introducing a provision in Fundamental Duties in Article 51A of the Constitution reading as, "to foster a spirit of family values and responsible parenthood in the matter of education, physical and moral wellbeing of children". A similar suggestion was made by the NCRWC as well.