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India, the world’s largest democracy, is celebrating its Republic Day, which is significant this year as it marks the 75th anniversary of the adoption of the Constitution.
The Constitution remains the bedrock of India's becoming a superpower nation where every section of society is empowered as envisioned by the founders, who compiled this sacred document as a powerful defender of the rights and well-being of citizens, including vulnerable sections.
It puts a protective net around the nation's youngest citizens and is a testament to its commitment to their future. It guarantees every child access to education, healthcare, and the necessities for growth and development. These fundamental rights, woven into the constitutional fabric, create a comprehensive shield protecting children from discrimination, abuse, neglect, and exploitation.
However, despite robust laws in place on child protection, millions of children continue to face challenges in the delivery of justice.
Access to justice
Justice for them remains a distant dream, as many crimes and criminals continue to thrive simply because the laws are implemented improperly, judgments of courts are overlooked with impunity and criminals get away due to loopholes in the criminal justice system.
In most Constitutions worldwide, ‘justice’ or ‘access to justice’ is an inherent interpretation found in various other rights but not defined as an explicit right.
In India, justice is limited to the Preamble to the Constitution, which starts with a solemn promise to secure “..Justice, social, economic and political.”
Justice should precede other rights in principle and must be a fundamental right seeping into governance and institutions.
According to prominent lawyer, author, and child rights activist, Bhuwan Ribhu, even ‘access to justice’ was never explicitly included in the original Constitution of India. Article 39A was inserted in the Directive Principles of State Policy wherein the state is duty-bound to provide legal aid and access to justice, in 1977, through a constitutional amendment.
On this, he further explains in his book, ‘Just Rights: Why Justice Should be a Fundamental Right’: “The Preamble also does not explicitly mention legal justice, which is assumed to be part of various other fundamental rights along with social justice, economic justice, and political justice”.
This limited inclusion has proven to be not enough towards the end goal of securing and ensuring justice for all, he argues.
Supreme Court as the defender of child rights
As the custodian of the Constitution and the ultimate arbiter of justice for children, the Supreme Court often steps in and addresses the issues of emerging challenges of child protection, be it online child sexual abuse, organised trafficking of children by criminals, and the prevalence of social evil of child marriage in society.
The Apex Court has reflected the judiciary’s role as protector of child rights and addressed systemic oversights by reiterating the foundational principles of child protection and welfare as enshrined in the Constitution.
As evident from its latest landmark ruling on September 23, 2024, in Just Rights for Children V. S. Harish, the Supreme Court ensured that the law remains relevant in changing societal norms through its transformative ethos.
This judgment set a precedence for the world as it observed that anyone viewing in private, downloading, storing, possessing, or distributing child pornographic material is liable to be booked under the POCSO as well as IT Act. The order changed the parlance from Child pornography to Child Sexual Exploitative and Abuse Material (CSEAM) steering a paradigm shift in how the crime is perceived.
This judgment is a watershed moment for child protection in India and a step forward in the global fight against child exploitation. By aligning India’s laws with international standards and ensuring robust accountability, the apex court set a powerful precedent for safeguarding children from the dangers of the digital world.
Further laying a clear legal foundation for the elimination of child marriage in India, the Supreme Court on October 18 last year in its 141-page judgment on a writ petition filed by Just Rights For Children’s NGO partner, Society for Enlightenment and Voluntary Action (SEVA), issued strict guidelines for the effective implementation of the Prohibition of Child Marriage Act, 2006, and observed that child marriage robs a child of her free will to choose a life partner.
In August same year, it directed the government to provide support persons in Protection of Children against Sexual Offenses (POCSO) Act cases by observing that justice can be said to have been approximated only when the victims are brought back to society, made to feel secure, and their worth and dignity restored.
Apart from the regular rulings of the Supreme Court on child rights, the High Courts too have intervened to safeguard the rights of vulnerable sections as was in Rajasthan where it directed the state government to stop scheduled child marriages during Akshaya Tritiya festival by holding panchayats accountable in the state for any child marriages.
Changemakers key to systemic transformation
Driving this change through legal interventions, community mobilisation, and policy advocacy, changemakers play a crucial role in protecting and advancing child rights by serving as powerful advocates in bridging loopholes in the legal system and driving systemic change through comprehensive strategies that empower vulnerable sections.
Using the prevention, protection, and prosecution model, ‘Just Rights for Children’, a civil society organisation has been at the forefront of securing these landmark legal judgments. It was also instrumental in getting legal entitlement to support persons for all children involved in Protection of Children from Sexual Offences (POCSO) Act cases and recommendations to create a comprehensive health and sex education programme for children in the last year alone.
Pertinently, Just Right for Children’s journey has been remarkable in the prevention of 2.5 lakh child marriages in India thus creating a movement for ending this social crime which eventually saw the Government of India launching a nationwide campaign of Child Marriage Free Bharat.
JRC has been the brainchild of Bhuwan Ribhu, who as its founder formulated PICKET strategy which is being followed by its partners to end violence against children.
This model envisaged by Ribhu enumerates Policy intervention, Convergence of services, Knowledge & awareness, Economics of crime, and Technology for change to bring about the behavioural and systemic change required for a lasting and sustainable impact on child protection issues.
Besides preventing child marriages, JRC details figures of rescued 56,578 children from trafficking and has also registered 32,170 cases against child traffickers. It says 489 cases of online child sexual exploitative and abuse material (CSEAM) have been registered and credited to have secured 1,645 convictions including online CSEAM cases.
Apart from India, JRC intervened in neighbouring Nepal by supporting the launch of Child Marriage Free Nepal campaign which aims to address the issue of child marriage in the country that has the second-highest prevalence of child marriage in South Asia. Indeed noteworthy achievements to create a holistic ecosystem of child protection.
The crux of JRC’s approach is reflected aptly by Ribhu who calls children a ‘national asset’, and says “If we fail to protect our children, nothing else that we do in life matters”.
Children as the future of a nation
Justice for vulnerable citizens remains the benchmark of a strong nation and the primary responsibility for children's rights lies with the State which must respect, protect, and fulfill their rights and ensure the full development of a child’s personality. The articulation of the right to development of a child puts a positive obligation on the state to create conditions that are feasible and the resources necessary for it.
As India faces new challenges in protecting its children, the Constitution's principles continue to guide legislative and judicial responses. Its fundamental premise remains unchanged: every child deserves a childhood free from exploitation, filled with opportunities for growth and learning.
Justice should be the core principle and an inherent right from which every other right follows.
Justice as a fundamental right will have an immense impact on the lives of vulnerable sections as the true spirit of a nation is defined by the justice that exists in it, the only assurance of this spirit can be through the Constitution mandating a Fundament Right to Justice.