RULE OF LAW VIS-A-VIS HUMAN RIGHTS IN INDIA WITH SPECIAL

REFERENCE TO CHILD

Dr. Jayanta Ghosh1 & Mr. Durjoy Kumar Deb2

1 Research Fellow, Centre for Regulatory Studies, Governance and Public Policy, West Bengal

National University of Juridical Sciences, Kolkata – 106.

2 Research Scholar, Department of Law, Cooch Behar Panchanan Barma University, West

Bengal.

Abstract

The children are the backbone of a country, for that the State has to protect and uplift the child.

There are a lot of ways where the rule of law and the human right of the country need to develop

for the upliftment of children. After the independence of India, we are still thriving to settle a

few issues for the critical nation builders. The societal economy mainly the reason for

flourished child labour. These children are bound to do work due to their poverty, economic

insufficiency, etc. Here the responsibility lies in the society how they are to be treated, though

India is a developing nation, so the children are to be protected for the countries development.

The idea is to bring out this research to make an elaborate responsible for each angle to uplift

the children. Moreover, human rights should be strengthened as per the rule of law.

Keywords: Children, Human Rights, Society, Economy.

1. Introduction

The Rule of law Vis-a-vis Human Rights in India are very much related issues on the part of

the needs of human society is a concern. On this very issue, the Rule of Law covers the full

range of areas, and on these areas, human rights took a significant portion of this area. When

there is exploitation in the arena of the rule of law, then the human right comes. Rule of Law

not only surrounds only in the area of the supremacy of the law of equality before the law but

also go in there field area of human rights, like children, women, minority, prisoner, Judiciary,

corruption, terrorism, international relation, etc. So it covers the full range are to human society

is a concern.

Henceforth, justifying this broad issue, I only confine my study to children. The children are

the future of the nation. Here the children are to face the rule of law for the protection of their

human rights. The children are taken the central developing part of a country. So a developing

country, the welfare of child rights is very much paramount. In India, the raise so much

legislation that has been made for the protection of the children. As the area is a violation, the

protection is necessary on this issue. The Rule of Law is to be creating security of the child

right. Here the Rule of Law and Human Rights is very much interlinked with each other. So

the conflict arises on both issues where the exploitation and deprivation come on any part of

human rights.

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2. Rule of Law

The expression “Rule of Law” has been derived from the French phrase “La Principle De

Legalite,” i.e., a government based on the principle of law. In simple words, the term the rule

of law indicates the State of affairs in a country where, in policy, the judge ruled. Law may be

taken to mean mainly a rule or principle which governs the external actions of the human beings

and which is recognized and applied by the State in the administration of justice. It protects the

people against the arbitrary action of the administrative authorities. Sir Edward Coke has

originated the rule of law. In the Dicey’s book, the law and the constitution, published in the

year 1885, Dicey attributed three meanings to the doctrine of the rule of law:

1. The supremacy of Law: It implies the absolute power of law, dominance, and the dominance

of it. It is opposed to the influence of arbitrary power and extensive discretionary power. In

Dicey’s words, “wherever there is discretion, there is room for arbitrariness and that in a

republic no less than under a monarchy discretionary authority on the part of the government

must mean insecurity for legal freedom on the part of its subjects.

2. Equality Before the Law: The law administered should be the ordinary rule of law

applicable to all the people equally irrespective of caste and creed or religion. This doctrine has

also been included in the Indian Constitution in the form of Article 14. The excerpts of which

can also be seen in Article 15. Dicey was of the view that any encroachment on the jurisdiction

of the courts and any restrictions on the subject’s unlimited access to them is bound to

jeopardize his rights.

3. The predominance of Legal Spirit: The Constitution is not the source but the consequence

of the rights of the individuals. Here, Dicey emphasized on the role of the courts. Without an

authority to protect and enforce the powers conferred upon citizens, their inclusion in a

document, etc. is of little value. Mere inclusion is not authoritative, and its provisions might be

abridged, trampled, or overlooked.

Today, Dicey’s theory of the rule of law cannot be accepted in its totality. Another jurist gives

seven principles of the meaning of the Term Rule of Law, : (1) Law and order; (2) fixed rules;

(3) Elimination of discretion;(4) Due process of law or fairness; (5) Natural Law or observance

of the principles of natural justice; (6) Preference for judges and ordinary courts of law to

executive authorities and administrative tribunals; and (7) Judicial review of regulatory actions.

In the year 1959, it is declared that the Rule of Law, “is not merely to safeguard and advance

civil and political rights of the individual in a free society, but also to establish social,

economic, educational and cultural conditions under which his legitimate aspirations and

human dignity mat be realized” Thus Rule of Law is a dynamic concept, which also takes

within its ambit all human rights of all individuals, which are indivisible and are

interdependent.

3. HISTORY

Although credit for popularizing the expression “the rule of law” in modern times is usually

given to A. V. Dicey, development of the legal concept can be traced through history to many

ancient civilizations, including ancient Greece, China, Mesopotamia, and Rome.

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3.1 Antiquity

In Western philosophy, the Ancient Greeks initially regarded the best form of government as a

rule by the best men. Plato advocated a benevolent monarchy ruled by an idealized philosopher

king, who was above the law. Plato nevertheless hoped that the best men would be good at

respecting established laws, explaining that "Where the law is subject to some other authority

and has none of its own, the collapse of the state, in my view, is not far off; but if the law is the

master of the government and the government is its slave, then the situation is full of promise

and men enjoy all the blessings that the gods shower on a state." More than Plato attempted to

do, Aristotle flatly opposed letting the highest officials wield power beyond guarding and

serving the laws. In other words, Aristotle advocated the rule of law:

It is more proper that law should govern than any one of the citizens: upon the same principle,

if it is advantageous to place the supreme power in some particular persons, they should be

appointed to be only guardians and the servants of the laws.

3.2 Middle Ages

In Islamic jurisprudence rule of law was formulated in the seventh century, so that no official

could claim to be above the law, not even the caliph. However, this was not a reference

to secular law, but to Islamic religious law in the form of Sharia law. In 1215, a similar

development occurred in England: King John placed himself and England's future sovereigns

and magistrates at least partially within the rule of law, by signing Magna Carta.

3.3 Modern times

An early example of the phrase “the rule of law” is found in a petition to James I of England in

1610, from the House of Commons: Among the first modern authors to give the principle

theoretical foundations was Samuel Rutherford in Lex, Rex (1644). The title is Latin for “the

law is king” and reverses the traditional rex lex (“the king is the law”). John Locke also

discussed this issue in his Second Treatise of Government (1690). The principle was also

addressed by Montesquieu in The Spirit of the Laws (1748). The phrase “rule of law” appears

in Samuel Johnson's Dictionary (1755).

In 1776, the notion that no one is above the law was popular during the founding of the United

States; for example, Thomas Paine wrote in his pamphlet Common Sense that “in America, the

law is king. For as in absolute governments, the King is the law, so in free countries, the

law ought to be king; and there ought to be no other.” In 1780, John Adams enshrined this

principle in the Massachusetts Constitution by seeking to establish “a government of laws and

not of men.”

4. Analysis of the dicey concept of Rule of Law

4.1Supremacy of Law

Explaining the first Principle, Dicey states that the Rule of Law means the absolute supremacy

or predominance of regular law as opposed to the influence of arbitrary power or extensive

discretionary power. It excludes the existence of arbitrariness, of prerogative or even broad

discretionary authority on the part of the government. According to him, the Englishmen were

ruled by the law and by the law alone; a man with us may be punished with breach of law but

can be punished for nothing else. In Dicey words, “Wherever there is discretion, there is room

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for arbitrariness, and that in a republic no less than under a monarchy discretionary authority

on the part of the government must mean insecurity for legal freedom on the part of its

subjects.” The Rule of Law implies the banning of “Rule of the Jungle” in matters about a

person or a nation. It is so imperative that the reign of law should not be reduced to anarchy by

a wilfully lawless minority.

In Local Government Board vs. Arlidge 1915 AC 120, the Privy Council observed that “even

to remit the maintenance of the constitutional right to the region of judicial discretion was like

shifting the foundation of freedom from the rock to sand.”

In other words, according to this doctrine, no man can be arrested, punished, or be lawfully

made to suffer in body or goods except by the due process of law and for a breach of law

established in the ordinary legal manner before the ordinary courts of the land.

4.2 Equality before the Law

He was explaining the second principle of the rule of law, Dicey states that there must be

equality of law and the equal subjection of all classes to the ordinary law of the land

administered by the ordinary law courts. According to him in England, all persons are subject

to the same law, and there were no extraordinary tribunals or special courts for officers of the

government and other authorities. He criticized the French legal system of droit administration

in which there were separate administrative tribunals deciding cases between the officials of

the State and the citizens. According to him, exemption of the civil servants from the

jurisdiction of the ordinary courts of law and providing them with the special tribunals was the

negation of equality. If there is one bulwark that guards the freedom of the average citizen, it

is the law courts. Courts of justice are more important than even the military to safeguard the

freedom of the country and the individual by enforcing adherence to the Rule of Law.

According to Dicey, any encroachment on the jurisdiction of the courts and any restriction on

the subject’s unlimited access to them are bound to jeopardize his rights- Nandini sympathy

Vs. Dani (1978) 2 SCC 424.

4.3 Predominance of a legal spirit

They are explaining the third principle of the rule of law, Dicey states that the general

principles of the constitution are the result of judicial decisions of the court of England. In

many countries, rights such as the right to personal liberty, freedom from arrest, freedom to

hold public meetings are guaranteed by a written constitution; in England, it is not so. Those

rights are the result of judicial decision in concrete cases which have arisen between the parties.

The constitution is not the source but the consequence of the rights of the individuals. Thus,

Dicey emphasized the role of the courts as a guarantor of liberty and suggested that the reasons

would be secured more adequately if they were enforceable in the court of law then by a mere

declaration of those rights in a document, as in the latter case, they can be ignored, curtailed or

trampled upon. In his words, “Our Constitution, in short, is a judge-made constitution, and it

bears on its face all the features, good and bad, of judge-made law.” The mere incorporation

or inclusion of individual rights in the written constitution is of little value in the absence of

effective remedies of protection and enforcement. He propounded, “habeas corpus Acts

declare no principle and define no rights, but they are for practical purposes worth a hundred

constitutional articles guaranteeing individual liberty.”

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5. How the Rule of Law influences the Indian System

Dicey’s rule of law has been adopted and incorporated in the Constitution of India. The

preamble itself enunciated the idea of justice, liberty, and equality. In chapter III of the

constitution, these concepts are enshrined as a fundamental right and are made enforceable.

The constitution of India is supreme and all the three organs of the government, vis. The

legislature, executive, Judiciary are subordinate to and have to in action in accordance with it.

The principle of judicial review is embodied in the constitution, and the subject can approach

high courts and the Supreme Courts for the enforcement of the fundamental right guaranteed

under the constitution of India. If the executive or the government abuses power vested in it or

if the action malafide, the same can be quashed by ordinary courts of law. All rules, regulations,

Ordinances, bye-laws, notifications, customs, and usages are laws within the meaning of

Article 13 of the constitution. If they are inconsistent or contrary to any of the provisions

thereof, they can be declared as ultra vires by the supreme court and by High Courts. The

President is required to take an oath to preserve, protect, and defend the constitution. No person

shall be deprived of his life or personal liberties except according to the procedure established

by law (Article-21) or of his property save by authority of law (Article-300A). The executive

and the legislative powers of the State and the Union have to be exercised in accordance with

the provisions of the constitution. The government and public officials are not above the law.

The maxim, “The King Cannot Do Wrong,” does not apply in India. There is Equality before

the law and equal protection of laws (Article-14).

Thus, it appears that the doctrine of Rule of Law is embodied in the Constitution of India, and

is treated as the basic structure of the Constitution. In the Fourteenth Report of the Law

Commission of India, it is stated: “Our Constitution in its preamble aspires to build a

sovereign republic dedicated to the idea of justice, liberty, equality, and fraternity. With these

end in view, its provision embodies in express term the power of judicial review in the courts

of the land, a power which was recognized in the united states only after a long struggle. The

Constitution has further taken care to provide us with the bulwark of an integrated and

irremovable judiciary so that our new-born democracy may be assured of proper growth under

the wings of a watchful and vigilant group of judges.”

6. Rule of Law within the area of Human Rights in India:-

Adoption Of Rule Of Law In India And Supreme Court Judgments: Fundamental rights

enshrined in part III of the constitution is a restriction on the law-making power of the Indian

Parliament. It includes freedom of speech, expression, association, movement, residence,

property, profession, and personal liberty. In its broader sense, the Constitution itself prescribes

the primary legal system of the country. To guarantee and promote fundamental rights and

freedoms of the citizens and the respect for the principles of the democratic state based on the

rule of law.

The famous habeas corpus case, ADM Jabalpur V. Shivakant Shukla is one of the most

famous cases when it comes to the rule of law. In this case, the question before the court was

‘whether there was any rule of law in India apart from Article 21’. This was in the context of

suspension of enforcement of Articles 14, 21, and 22 during the proclamation of an emergency.

The answer to the majority of the bench was negative for the question of law. However, Justice

H.R. Khanna dissented from the majority opinion and observed that “Even in the absence of

Article 21 in the Constitution, the State has got no power to deprive a person of his life and

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liberty without the authority of law. Without such sanctity of life and liberty, the distinction

between a lawless society and one governed by laws would cease to have any meaning…”

The secondary meaning of the rule of law is that the government should be conducted within a

framework of recognized rules and principles which restrict discretionary powers.

The Supreme Court observed in Som Raj v. the State of Haryana that the absence of arbitrary

power is the primary postulate of Rule of Law upon which the whole constitutional edifice is

dependant. Discretion being exercised without any rule is a concept that is the antithesis of the

idea.

The third meaning of the rule of law highlights the independence of the Judiciary and the

supremacy of courts. The Supreme Court rightly reiterates in the case Union of India v.

Raghubir Singh that it is not a matter of doubt that a considerable degree that governs the

lives of the people and regulates the State functions flows from the decision of the superior

courts.

Although, the complete absence of discretionary powers or lack of inequality is not possible in

this administrative age, yet the concept of the rule of law has been developed. It is prevalent in

common law countries such as India. The rule of law has provided a sort of touchstone to judge

and test the administrative law prevailing in the country at a given time. The rule of law

traditionally denotes the absence of arbitrary powers. Hence can denounce the increase of

arbitrary or discretionary powers of the administration and advocate controlling it through

procedures and other means. The rule of law, for that matter, is also associated with the

supremacy of courts. Therefore, in the ultimate analysis, courts should have the power to

control the administrative action, and any apparent diminution of that power is to be criticized.

The principle implicit in the rule of law that the executive must act under the law and not by

its fiat is still a cardinal principle of the common law system, which is being followed by India.

In the common law system, the executive is regarded as not having any inherent powers of its

own, but all its energies flow and emanate from the law. It is one of the vital principles playing

an essential role in democratic countries like India.

There is a thin line between judicial review and judicial activism. The rule of law serves as the

basis of judicial review of administrative action. The Judiciary sees to it that the executive

keeps itself within the limits of law and does not overstep the same. Thus, judicial activism is

kept into check. However, there are instances in India where the Judiciary has tried to infringe

upon the territory of the executive and the legislature. A recent example of this would be the

present reservation scenario for the other backward classes. The Judiciary propagated that the

creamy layer should be excluded from the benefits of the reservation policy, whereas the

legislature and the executive were against it.

As mentioned before, Dicey’s theory of the rule of law has been adopted and incorporated in

the Indian Constitution. The three arms judiciary, legislature, and executive work in accordance

with each other. The public can approach the High Court as well as the Supreme Court in case

of violation of their fundamental rights. If the power with the executive or the legislature is

abused in any sort, its malafide action can be quashed by the ordinary courts of law. This can

be said so since it becomes opposition to the due process of law. The rule of law also implies

a particular procedure of law to be followed. Anything out of the purview of the relevant

legislation can be termed as ultra vires.

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In Chief settlement Commissioner; Punjab v. Om Prakash, it was observed by the supreme

court that, “In our constitutional system, the central and most characteristic feature is the

concept of the rule of law which means, in the present context, the authority of law courts to

test all administrative action by the standard of legality. The administrative or executive action

that does not meet the standard will be set aside if the aggrieved person brings the matter into

notice.”

In India, the meaning of the rule of law has been much expanded. It is regarded as a part of the

basic structure of the Constitution and, therefore, it cannot be abrogated or destroyed even by

Parliament. The ideals of the constitution, liberty, equality, and fraternity have been enshrined

in the preamble. Constitution makes the supreme law of the land, and every law enacted should

conform to it. Any violation causes the law ultra vires.

In Kesavanda Bharti vs. the State of Kerala (1973) - The Supreme Court enunciated the rule

of law as one of the most critical aspects of the doctrine of the basic structure. In Menaka

Gandhi vs. Union of India - The Supreme Court declared that Article 14 strikes against

arbitrariness. In Indira Gandhi Nehru vs. Raj Narayan - Article 329-A was inserted in the

Constitution under the 39th amendment, which provided certain immunities to the election of

the office of Prime Minister from judicial review. The Supreme Court declared Article 329-A

as invalid since it abridges the basic structure of the Constitution.

In the case of Binani Zinc Limited Vs. Kerala State Electricity Board and Ors. (2009)

Justice S B Sinha declares that “It is now a well-settled principle of law that the rule of law

among other things postulates that all laws would be the prospective subject of course to

enactment an express provision or intendment to the contrary.”

In Secretary, State of Karnataka and Ors. Vs. Umadevi and Ors, a Constitution Bench of

this Court, has laid down the law in the following terms: “Thus, it is clear that adherence to the

rule of equality in public employment is a basic feature of our Constitution and since the rule

of law is the core of our Constitution, a court would certainly be disabled from passing an order

upholding a violation of Article 14 or in ordering the overlooking of the need to comply with

the requirements of Article 14 read with Article 16 of the Constitution.”

In the case of Amlan Jyoti Borooah Vs.State of Assam and Ors. It was held by S B Sinha

that: “Equity must not be equated with compassion. Equitable principles must emanate from

facts which by themselves are unusual and peculiar. A balance has to be struck, and the Court

must be cautious to ensure that its endeavor to do equity does not amount to judicial

benevolence or acquiescence of established violation of fundamental rights and the principles

of the rule of law.”

Moreover, In the case of Bachan Singh v. State of Punjab AIR 1980 SC898, Singh Justice

Bhagwati has emphasized that the rule of law excludes arbitrariness and unreasonableness. To

ensure this, he has suggested that it is necessary to have a democratic legislature to make laws.

Still, its power should not be unfettered, and that there should be an independent judiciary to

protect the citizens against the excesses of executive and legislative power.

Hence, it is quite evident that the concept of the rule of law is gaining importance and attention,

and judicial efforts are made to make it stronger.

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7. Highlight some particular area, where Human Right touch the present scenario widely

7.1 Child & Rule of Law

Here the study of Rule of Law & Human right in India is very much different status in practical.

In the rule of law, there two issues are present, one- if there is no law; two- how far current

existing laws are implemented. Hence on the matter of child, there is the law, but the

requirements are not adequately maintained for some reason. The children are not given

protection in every aspect of life. The essential need of the child is not correctly preserved by

the State, though there is legislation. This legislation is to be kept in the statute, but the State

cannot follow this in a practical sense. So many violations are done in education, nutrition, the

health of the child. The State exploits them, so the rule of law not correctly maintains.

7.2 Women & the rule of law

“You can tell the condition of a nation by looking at the status of its women”- Pt.

Jawaharlal Nehru. By this saying of the great man, we can come to an area of development

of the women. Here the Human Rights of the women are not secure in India; in every field,

they are exploited seven violated. The Rule of Law is there, but the proper utilization of the

rule of law is scarce. The women are used or deprive in the area of the working field,

matrimonial home, prostitution, maternity, etc. Etc. The human right of the women is in a

deplorable condition. Though there are so many laws that are enacted by the legislator, then

also they are not secure. In recent days the crime rate against women is rapidly growing day

by day. Every state & union territories the one of the main flourishing crime is against the

women. The women are the victim of some crimes against them. The women are the sole maker

of society. The Rule of Law for the women is silent on the part of the protect them wholly.

7.3 Minor and the rule of law

The ancient time, class deprivation is going on. From this deprivation, some groups of people

are very much backward in the field of development. They are back education, economy and

politics, etc., in every area of the civil society. These small or big groups are minorities. For

the minority people, the reservation or declaration is made for the development of them in

many countries. In India, the supreme law constitution of India has provided the provisions for

the minorities. But in a practical sense, the provision is in pen & paper; this is not fully

maintained. They are not given reservations in every aspect of possible field.

The Union Cabinet of India on 22 December 2011 approved a 4.5 percent share for minorities

within the 27% OBC quota in jobs and university seats. The approval will come in force from

1 January 2012. It suggests that minorities can get 4.5 jobs out of every 100 government jobs

and university seats. As per the data released by the National Commission for Religious and

Linguistic Minorities, the OBC population was 52 percent of India’s population, of which

minorities constitute 8.4 percent.

Justice Rajinder Sachar Committee Report-released in November 2006- had found the minority

community under-represented in all spheres of professional and public life.

7.4 Citizens & Rule of Law

In the history of India, only two kings earned the appellation of “the great.” The first was

Ashoka, the great, and the second was Akbar the Great. In passing, I may say that I am amazed

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that a country which was predominantly Hindu raised the toast of “Great” to one king who

embraced Buddhism and to another who professed Islam! Under Ashoka & Akbar, codes of

conduct were in force. The first “formal” courts of law were established under the Mughal rule.

Nevertheless, even such benevolent monarchies cannot be described as societies where the rule

of law prevailed, the reason being the absence of representative democracy. It was democracy

that brought about a complete transformation in our view about the Rule of Law. Democracy

was defined as representative government. In terms that have now passed into the realm of

constitutional law, democracy was described as “Government of the people, for the people and

by the people.” Any code of conduct that had the support of the people was elevated to a Rule

of Law. Anything which did not have the help of the people was rejected. Thus the Rule of

Law became synonymous with democracy. There three basic underlying and fundamental

principles of Rule of Law: Firstly, representation; Secondly, liberty; Thirdly, equality. Here all

fundamental constitutional rights have arisen out of these three principles. The right to free and

fair election, the right to vote, the right to recall, and the right information about the candidates

are built on the basic principle of “representation.” The right to freedom of speech and

expression, the right to move freely throughout the country, and the right to settle in any part

of the country are an extension of the principle of “liberty.” Likewise, the prohibitions against

discrimination, the right to profess any religion, the right to practice any profession or trade,

the right to education, and the right to information spring from the principle of “equality.”

7.5Constitution of India and Rule of Law

For genuine democracies, constitutions consist of overarching arrangements that determine the

political, legal, and social structures by which society is to be governed. Constitutional

provisions are therefore considered to be supreme or fundamental law. All other laws within a

country must abide by and follow the principles of the constitution. Under these circumstances,

if constitutional law itself is inadequate, the nature of democracy and the rule of law within a

country is affected. This will impact citizens' human rights, which can only be realized and

protected under a rule of law framework.

The structure of modern nations has been shaped with the government being divided into

executive, legislative, and judicial bodies, with the commonly accepted notion that these bodies

and their powers must be separated. This is one of the most fundamental tenets of modern

governance, and as such, is a crucial characteristic of any constitution. Of course, the separation

of powers does not mean these bodies function alone; rather, they work interdependently but

maintain their autonomy. Other tenets include the idea of limited government and the

supremacy of law. Together, these can be termed the concept of constitutionalism.

In other words, constitutionalism is the idea that the government should be limited in its powers

and that its authority depends on its observation of these limitations. In particular, these

limitations relate to legislative, executive, and judicial powers. A constitution is a legal and

moral framework setting out these powers and their limitations. This framework must represent

the will of the people, and should, therefore, have been arrived at through consensus.

If these are taken to be the basic tenets of constitutionalism, then not all states with constitutions

will have embraced constitutionalism; authoritarian governments or military dictatorships do

not fulfill the principles of the supremacy of law or the separation of powers. The rule of law

refers to the sovereignty of law: that society is governed by law, and this law applies equally

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to all persons, including government and state officials. There are two aspects to the

relationship between constitutionalism and the rule of law: not only is constitutionalism the

institutional basis for the rule of law in any society, but the rule of law also safeguards it.

Following basic principles of constitutionalism, common institutional provisions used to

maintain the rule of law include the separation of powers, judicial review, the prohibition of

retroactive legislation, and habeas corpus. The independence of law-making bodies is

established, as is freedom for judges in articulating and interpreting laws. Genuine

constitutionalism, therefore, provides a minimal guarantee of the justice of both the content

and the form of law.

On the other hand, constitutionalism is safeguarded by the rule of law. Only when the

supremacy of the rule of law is established, can supremacy of the constitution exist.

Constitutionalism additionally requires effective laws and their enforcement to provide

structure to its framework.

7.6 Judiciary and Rule of Law

Every human weakness, it is said, is exaggerated by power. Every power has an inherent

tendency to run to excess. The message of the Rule of Law is “let no men be trusted with power

but tie him down by the chains of the constitution.” The primary concern of the Rule of Law is

to civilize public power and control its abuse. The common law of England has been the

ultimate source of law in countries borrowing the Anglo-Saxon system. Learned judge and

author Durga Das Basu puts these ideas succinctly: “Though the very concept of limited

government with a written constitution and a bill of rights enforceable by the judicial review

was foreign to the unwritten constitutional law of England, these concepts are all founded on

the common law heritage.” In India, the Supreme Court, overruling its own earlier vie,

declared, “We have no crown, the archaic rule based on the prerogative and protection of the

crown has no relevance to a democratic republic. It is inconsistent with the rule of law based

on the doctrine of equality.” The Supreme Court observed in the Kalyan Singh case that the

maxim “King cannot do wrong” has no application in India. The successful struggle of the

people against autocratic monarchies was indeed a pyrrhic victory as it ended in replacing one

master by another, this time in the form of a parliament. As the learned Attorney General of

the UK said, in the ultimate analysis, the human rights Act “was intended to strengthen the

Rule of Law and not the rule of lawyers.” With a slight variation, it is said that legal control of

the government is not the judge’s control of the government; judicial review not an

“amorphous general suspension of government.”

8. Confine in the study to – CHILD

The law, policy, and practice of child welfare have undergone a significant change from a

historical perspective. Before 1839, there was the concept of authority and control. It was an

established common law doctrine that the father has absolute right over the children. After this,

the welfare principle was reflected in the dominant ideology of the family. The Victorian judge

who developed the idea of the welfare principle favored one dominant family form. The Indian

traditional view of welfare is based on data, dana, Dakshina, bhiksha, ahimsa, samya-bhava,

swadharma, and tyaga. The essence of which was self-discipline, self-sacrifice, and

consideration for others. It was believed that the well-being of the children depended on these

values.

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Who is a Child?

The definition of the child is subjective and depends upon the matters it is related to. In general,

term child is used for a person who, on account of his young age, is considered to be of

immature intellect ad imperfect discretion and thus unable to comprehend the consequences of

his act. Such a person is known as a minor.

According to article 1 of the United Nations Convention on Rights of the Child 1989: “A child

means every human being below the age of eighteen years unless, under the law applicable to

the child, the majority is attained earlier.”

In the case of child labor the definition of child can be referred under Child Labour (Prohibition

and Regulation) Act 1986; it states that: “Child means a person who had not completed 14

years of age”.

9. Right of the child in national & international level

Law in the form of international conventions can contribute considerably. International

instruments stress participation as a core value along with survival, protection, and

development. Laws and legal strategies must be devised to encourage these values. In a recent

judgment, the Supreme Court held that “once signed, any international treaty or convention

will be treated as a part of law unless otherwise stated.” The Indian government is thus bound

in its obligation to implement any convention or treaty that is signed. India has ratified the

United Nations Convention on the Rights of the Child and the Convention on All Forms of

Discrimination against Women. The Declaration of the Right of the child 1924, Adopted by

the fifth Assembly of the League of the Nation, can be seen as the first international instrument

dealing with children’s Rights. The next Declaration of the Right of the Child 1959, which

provide special guard and appropriate special protection need by the children, and recall the

original recognition of those needs by the declaration of the Rights of The Child 1924. Then

the next Convention was held in the year 1989, represent a turning point in the international

movement on behalf of child rights. This comprehensive document contains a set of universal

legal standards or norms for the protection and well-being of children. Broadly the civil,

political, social, economic, and cultural rights of every child can be grouped into the following

four classes: (1) Right to Protection; (2) Right to Survival; (3) Right to Development; (4) Right

to participation. It is significant to note that with the exception of the UN Convention on the

Rights of the Child 1989, there is no other child-centered approach and second, the Asia region,

which has the highest proportion of the world’s children, which does not have any similar

regional human right or child rights instrument. All the countries have ratified the UN

Convention on the right of the child, subject to Reservation /Declaration.

10. Child Rights in India

India is a party to the UN declaration on the Rights of the Child 1959. Accordingly, it adopted

a National Policy on Children in 1974. The policy reaffirmed the constitutional provisions for

adequate services to children, both before and after birth, and through the period of growth to

ensure their full physical, mental and social development. Accordingly, the government is

taking action to review the national and State legislation and bring it in line with the provisions

of the Convention. India is also a signatory to the World Declaration on the Survival,

Protection, and Development of Children. In pursuance of the commitment made at the World

Summit, the Department of Women and Child Development under the Ministry of Human

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Resource Development has formulated a National Plan of Action for Children. Most of the

recommendations of the World Summit Action Plan are reflected in India's National Plan of

Action- keeping in mind the needs, rights, and aspirations of 300 million children in the

country. The priority areas in the Plan are health, nutrition, education, water, sanitation, and

environment. The Plan gives special consideration to children in difficult circumstances and

aims at providing a framework for the actualization of the objectives of the Convention in the

Indian context.

The legislation is one of the main weapons of empowerment of children. Even though

appropriate legislation may not necessarily mean that the objectives of the legislation will be

achieved, its very existence creates an enabling provision whereby the State can be compelled

to take action. The legislation reflects the commitments of the State to promote an ideal and

progressive value system. India follows an adversarial legal system with an in-built bias in

favor of the accused, who is presumed innocent until the guilt is proved. The Constitution of

India, the fundamental law of the country, came into effect on 26 January 1950. It provides a

protective umbrella to the rights of the children. These Rights includes the right to equality

[Article-14]; personal liberty, right to due process of law [Article-21]; right against exploitation

[Article-23]; religious, cultural, educational right [Article-29]; and right to constitutional

remedies [Article-32]. In addition to these basic rights, there are certain fundamental rights,

especially for children who protected by the Legislation, these are:

The Guardian and wards Act of 1890.

The Child Marriage Restraint Act of 1929.

Hindu Adoption and Maintenance Act 1956.

The Hindu Minority and Guardianship Act of 1956.

Young Persons Harmful Publications Act 1956.

Probation of Offenders Act 1958.

The Orphanage and Other Charitable Homes (Supervision And Control) Act 1960.

Apprentice Act 1961.

The Medical Termination of Pregnancy Act 1971.

The Child Labour (Prohibition and Regulation) Act 1986.

The Children (Pledging of Labour) Act 1933.

The Infant Milk Substitutes, Feeding Bottles, and Infant Foods (Regulation of

Production, supply, and Distribution) Act 1992.

The Pre-natal Diagnostic Technique (Regulation and Prevention of Misuse) Act 1994.

The Juvenile Justice (Care and Protection of Children) Act 2000.

The Commission for Protection of Child Rights Act 2005.

Recent UNICEF (2005) report on the State of the world’s children under the title “Childhood

Under Threat”, speaking about India, states that millions of Indian children are equally

deprived of their rights to survival, health, nutrition, education, and safe drinking water. It is

reported that 63 percent of them go to bed hungry, and 53 percent suffer from chronic

malnutrition.

The report says that 147 million children live in kuchcha houses, 77 million do not use drinking

water from a tap, 85 million are not being immunized, 27 million are severely underweight,

and 33 million have never been to school. It estimates that 72 million children in India between

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five and 14 years do not have access to primary education. A girl child is the worst victim as

she is often neglected and is discriminated against because of the preference for a boy child.

11. Primary concern and Obstacles in realizing the Rights of the Child

“A Child is the father of the man.” This famous line quoted by William Wordsworth refers

to the importance of the child in a society for the development of society as well as for the

development of the whole nation. For the welfare and development of the nation, a child should

be introduced to high education and should be devoid of several social evils. One of these evils

is CHILD LABOUR. Child labour is a practice usually followed in developing and

underdeveloped countries. India, unfortunately, is one of them. Child labour is work that harms

children or keeps them from attending school. The various problems arising in the country’s

economic, political, and social condition is one of the primary reasons for the growth of this

problem. The International Labour Organization estimates that 246 million children between

the ages of 5 and 17 currently work under conditions that are considered illegal, hazardous, or

extremely exploitative.

United Nations Secretary-General Kofi Annan quoted, "Child labor has serious consequences

that stay with the individual and with society for far longer than the years of childhood. Young

workers not only face dangerous working conditions. They face long-term physical,

intellectual, and emotional stress. They face an adulthood of unemployment and illiteracy."

Also former president of India and a well-known scientist ‘Dr. APJ Abdul Kalam Azad’ said,

“All of us should feel proud on all literate, intellectuals, entrepreneurs and affluent citizens of

the country but it should not be forgotten that such categories of persons are almost surrounded

from all corners by the large number of people who are poor, illiterate and malnutrition. They

make our life comfortable and worth living by hard work of day and night, and it may be

dangerous to neglect them ....”

12. Areas of Child Labour in India & Ratio

Working children are epitomic of abuse and exploitation. They are often the victims of their

employers and sometimes even their parents. A childhood earmarked by nature for fun and

frolic, education and enlightenment, is ruined by the compulsion to earn money. Many jobs

involve working in hazardous conditions. It is not uncommon to read in newspapers of

tragedies relating to fireworks; many accidents are fatal to the children involved. Working

children become accustomed to factories where chemicals, foul smoke, dazzling light, and

deafening noise threaten their health and impede their overall development. In Indian society

children, workers are growing day by day due to the reason of the developing country. The

child labourer is working some areas this is hereunder:-

In India, the problem of child labour is well recognized. There are varying estimates of the

number of working children in the country due to differing concepts and methods of estimation.

The 2001 national census estimates the number of working children at 12.6 million. The recent

provisional rates of child workers are 11 million.

Many children are engaged in classified as 'hazardous labour,' i.e., harmful to the physical,

emotional, or moral well-being of children. Although there are inter-state and inter-regional

variations in India, the factors that contribute to child labour, and hazardous child labour, in

particular, include parental poverty and illiteracy; social and economic circumstances; lack of

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awareness; lack of access to basic and meaningful quality education and skills; high rates of

adult unemployment and under-employment, and cultural values of the family and society.

Hereunder the ratio of child labour in India are presented according to census wise:-

13. Judicial Response

The Judiciary in the country has shown its great concern for the working children by bringing

occupations or processes under the judicial scrutiny by directly applying the constitutional

provision relating to children. There are some cases in which the Judiciary has given the step

towards the children for their upliftment in all area.

In the People’s Union for Democratic Rights Vs. Union of India, AIR 1982 SC 1480, The

Apex court has suggested that the government must ensure the education of children of parents

who are working in construction.

Labourers Working on Salal hydro Project Vs. State of Jammu & Kashmir, 1983 Lah I.

C 542, the Supreme court directed whatever the Central Government undertakes a construction

project which is likely to last for a considerable period of time, it should ensure that children

of construction who are living at or near the project site are given facilities for schooling.

Rajangam, Secretary, district Beedi Workers Union Vs State of Tamil Nadu & others

(1992) 1 SCC 221, the Supreme Court opined that tobacco manufacturing was indeed

hazardous to health. Child Labour in this trade should, therefore, prohibit as far as possible,

and employment of child labour should be stopped.

M. C Mehta Vs. State of Tamil Nadu and others, AIR 1991 Sc 283, In this case, the Supreme

Court allowed children to work in a prohibited occupation like fireworks.

Bandhua Mukti Morcha Vs. Union Of India and others, AIR 1976 SC 802, the court

emphasized that when the allegations revealed that the workers were being held in bondage

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without basic amenities like shelter, drinking, water, or two square meals a day, it was a

violation of fundamental right.

14. Implementation of Rule of Law in the protection of child Area of Human Right in

India

The 250-plus legislation relating to children have to be harmonized and interlinked. For

instance, the Juvenile Justice (Care and Protection of Child) Act 2000, need to be linked to the

probation of Offenders Act 1958, the orphanages and Other Charitable Homes (Supervision

and control) act 1960, the Child Labour (Prohibition Regulation) Act 1986, The Primary

Education Acts, The Adoption Laws, The Child Marriage restraint Act 1929, and the Persons

with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act 1995.

The different ministries dealing with various issues and concerns of children have to work in

coordination. The departments of labour, social justice and empowerment, finance, and human

resources development deal with different legislations. Each of the legislation cannot work in

isolation. Multidisciplinary and interdisciplinary teams and partnerships have to work together.

A partnership between many actors stakeholders can work together to realize the rights of the

child. The Judiciary, different ministries, bureaucrats, medical professionals, agencies and

NGOs, legal activists, Police, Teachers, Lawyers, counselors, parents, mental health

professionals, and all those citizens who are concerned with the rights of the child need to have

a coordinated and a partnership approach.

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15. Conclusion

The rule of law is an idea about law, justice, and morality. It considers what laws, norms, rules,

procedures, systems, and structures should be and what they should not be. Norms should be

proclaimed publicly by the peoples and their appropriate representatives. Inherent in this

formulation are three realities. One is that the law governs people as well as the government

itself. Next, persons should obey the law. The third is that the norms we call lawyers need to

follow able - not only in the sense of being known, knowable, and predictable, but in the most

profound regard of being just. It is a necessary element for democracy and good governance

and also assists in facilitating stability and peace.

Moreover, Human rights can be considered as a check over the criticism of the rule of law i.e.,

absolutism and despotism. The rule of law in the Indian society has not achieved the intended

results is that the deeply entrenched values of constitutionalism or abiding by the Constitution

of India have not taken roots in the community. Corruptions, Terrorism, etc. are all antithesis

to the Rule of Law. In recent times, common law traditions, the Constitution of India, and the

School

CHILD

Other

Significant

Adults Police Social Worker

Teacher

Doctor

Probation

Officer

Psychiatrist

psychologist

Counsellor

Lawyers

Court/

Guardian ad

litem

Juvenile

Justice

Parents

and/or carer

Judiciary

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perseverant role of the Judiciary have contributed to the development of the rule of law. A few

examples of how our judicial system has upheld the rule of law and ensured justice is seen in

the creation of new avenues seeking remedies for human rights violations through PIL pleas

and promotion of genuine interventions by the Judiciary in the areas of bonded and child labour,

prostitution, clean and healthy environment, etc. but on the darker side, there have been

violations of fundamental rights as well.

The recent example is of the singur incident a Division Bench of the High Court comprising

Honourable Chief Justice S S Nijjar and Honourable Justice Pinaki Chandra Ghosh also

took suo moto note of the incident.“it seems as if the Police Department which is under the

control of the Home Department is not even aware of the existence of Article 21 of the

Constitution of India…..This Article specifically guarantees that ‘no person shall be deprived

of his life or personal liberty except according to the procedure established by law.’ Oblivious

of the aforesaid guarantee, the police have resorted to gun firing on a large crowd protesting

against the proposal to acquire their land.” There was a total absence of the rule of law in

West Bengal during this period. For a purposeful rule of law to exist in a society, democracy

is required, and for a democratic state, the prevalence of the rule of law is needed. Thus, it can

be concluded that democracy and rule of law are interdependent, and one cannot flourish

without the other. India is the world’s largest democracy; however, the prevalence of rule of

law is generally under threat here.

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Internationalist 258 (August 1994), p.29.

3. Black, M. Street and Working Children. Florence: UNICEF, 1993, 56pp.

4. Blanc, C.S. Urban Children in Distress: An Introduction to the Issues. Florence:

UNICEF, International Child Development Centre, 1992, v + 70pp.

5. Blanchard, F. Abolition of Child Labour and the Protection of Working Children.

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12. Deschenes, J. Sale of Children and the Exploitation of Child Labour. New York: UN,

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16. Harvey, Pharis. "Working for Labor Rights". Multinational Monitor 14:12 (Dec.

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18. James, A. and A. Prout, eds. Constructing and Reconstructing Childhood:

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20. Lamesch, A. Enfants dans la société d'aujourd'hui. Bruxelles: Éditions de l'Université

de Bruxelles, 1990, 143pp.

21. Lavalette, M. Child Employment in the Capitalist Labour Market, Aldershot:

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22. Lee- Wright, P. Child Slaves. London: Earthscan Publications, 1990, 280pp.

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