I.

INTRODUCTION

The universal declaration of human rights adopted way back in 1948, proclaimed that childhood
is entitled to special care and assistance. It was only during the twentieth century that the
concept of children’s rights emerged. Rights perspective is embodied in the United Nations
convention on the rights of child in 1989, which is a landmark in international human rights
legislation. Children being the most vulnerable section of the society need care, protection and
affection for their survival and for all round development.
The question of right to health has emerged as one of the most vibrant issues for discussion in
this new millennium. The question of children’s right to health requires utmost attention as
children are the future of the world. This project is an attempt to analyze and understand the
different aspects of children’s right to health in the light of Indian government’s various
policies, programmes, legislation & judicial response in this direction. The health is an essential
condition for the attainment of state of complete physical, mental & social well being and,
therefore, is a fundamental right of every human being without distinction of any kind.

II. WHAT IS THE RIGHT TO HEALTH?

(i). Key aspects of the right to health1:

• The right to health is an inclusive right. We frequently associate the right to health with
access to health care and the building of hospitals. This is correct, but the right to health
extends further. It includes a wide range of factors that can help us lead a healthy life. The
Committee on Economic, Social and Cultural Rights, the body responsible for monitoring the
International Covenant on Economic, Social and Cultural Rights2, calls these the “underlying
determinants of health”.

1
. Many of these and other important characteristics of the right to health are clarified in general comment N° 14
(2000) on the right to health, adopted by the Committee on Economic, Social and Cultural Rights.
2
. The Covenant was adopted by the United Nations General Assembly in its resolution 2200A (XXI) of 16
December 1966. It entered into force in 1976 and by 1 December 2007 had been ratified by 157 States.

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They include:
 Safe drinking water and adequate sanitation;
 Safe food;
 Adequate nutrition and housing;
 Healthy working and environmental conditions;
 Health-related education and information;
 Gender equality.
• The right to health contains freedoms. These freedoms include the right to be free from non-
consensual medical treatment, such as medical experiments and research or forced
sterilization, and to be free from torture and other cruel, inhuman or degrading treatment or
punishment.
• The right to health contains entitlements. These entitlements include:
 The right to a system of health protection providing equality of opportunity for
everyone to enjoy the highest attainable level of health;
 The right to prevention, treatment and control of diseases;
 Access to essential medicines;
 Maternal, child and reproductive health;
 Equal and timely access to basic health services;
 The provision of health-related education and information;
 Participation of the population in health-related decision making at the national and
community levels.
• Health services, goods and facilities must be provided to all without any discrimination.
Non-discrimination is a key principle in human rights and is crucial to the enjoyment of the right
to the highest attainable standard of health (see section on non-discrimination below).
• All services, goods and facilities must be available, accessible, acceptable and of good
quality.
 Functioning public health and health-care facilities, goods and services must be
available in sufficient quantity within a State.

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  They must be accessible physically (in safe reach for all sections of the population,
including children, adolescents, older persons, persons with disabilities and other
vulnerable groups) as well as financially and on the basis of non-discrimination.
Accessibility also implies the right to seek, receive and impart health-related information
in an accessible format (for all, including persons with disabilities), but does not impair
the right to have personal health data treated confidentially.
 The facilities, goods and services should also respect medical ethics, and be gender-
sensitive and culturally appropriate. In other words, they should be medically and
culturally acceptable.
 Finally, they must be scientifically and medically appropriate and of good quality. This
requires, in particular, trained health professionals, scientifically approved and
unexpired drugs and hospital equipment, adequate sanitation and safe drinking water.

(ii). Common misconceptions about the right to health:

• The right to health is NOT the same as the right to be healthy.
A common misconception is that the State has to guarantee us good health. However, good
health is influenced by several factors that are outside the direct control of States, such as an
individual’s biological make-up and socio-economic conditions. Rather, the right to health refers
to the right to the enjoyment of a variety of goods, facilities, services and conditions necessary
for its realization. This is why it is more accurate to describe it as the right to the highest
attainable standard of physical and mental health, rather than an unconditional right to be
healthy.
• The right to health is NOT only a programmatic goal to be attained in the long term.
The fact that the right to health should be a tangible programmatic goal does not mean that no
immediate obligations on States arise from it. In fact, States must make every possible effort,
within available resources, to realize the right to health and to take steps in that direction
without delay. Notwithstanding resource constraints, some obligations have an immediate
effect, such as the undertaking to guarantee the right to health in a non-discriminatory manner,

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to develop specific legislation and plans of action, or other similar steps towards the full
realization of this right, as is the case with any other human right. States also have to ensure a
minimum level of access to the essential material components of the right to health, such as
the provision of essential drugs and maternal and child health services.
• A country’s difficult financial situation does NOT absolve it from having to take action to
realize the right to health.
It is often argued that States that cannot afford it are not obliged to take steps to realize this
right or may delay their obligations indefinitely. When considering the level of implementation
of this right in a particular State, the availability of resources at that time and the development
context are taken into account. Nonetheless, no State can justify a failure to respect its
obligations because of a lack of resources. States must guarantee the right to health to the
maximum of their available resources, even if these are tight. While steps may depend on the
specific context, all States must move towards meeting their obligations to respect, protect and
fulfill.

(iii). The link between the right to health and other human rights:
Human rights are interdependent, indivisible and interrelated3. This means that violating the
right to health may often impair the enjoyment of other human rights, such as the rights to
education or work, and vice versa. The importance given to the “underlying determinants of
health”, that is, the factors and conditions which protect and promote the right to health
beyond health services, goods and facilities, shows that the right to health is dependent on, and
contributes to, the realization of many other human rights. These include the rights to food, to
water, to an adequate standard of living, to adequate housing, to freedom from discrimination,
to privacy, to access to information, to participation, and the right to benefit from scientific
progress and its applications.
It is easy to see interdependence of rights in the context of poverty. For people living in
poverty, their health may be the only asset on which they can draw for the exercise of other

3
. See Vienna Declaration and Programme of Action (A/CONF.157/23), adopted by the World Conference on
Human Rights, held in Vienna, 14–25 June 1993.

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economic and social rights, such as the right to work or the right to education. Physical health
and mental health enable adults to work and children to learn, whereas ill health is a liability to
the individuals themselves and to those who must care for them. Conversely, individuals’ right
to health cannot be realized without realizing their other rights, the violations of which are at
the root of poverty, such as the rights to work, food, housing and education, and the principle
of non-discrimination.

(iv). How does the principle of non-discrimination apply to the right to health?
Discrimination means any distinction, exclusion or restriction made on the basis of various
grounds which has the effect or purpose of impairing or nullifying the recognition, enjoyment
or exercise of human rights and fundamental freedoms. It is linked to the marginalization of
specific population groups and is generally at the root of fundamental structural inequalities in
society. This, in turn, may make these groups more vulnerable to poverty and ill health. Not
surprisingly, traditionally discriminated and marginalized groups often bear a disproportionate
share of health problems.
For example, studies have shown that, in some societies, ethnic minority groups and indigenous
peoples enjoy fewer health services, receive less health information and are less likely to have
adequate housing and safe drinking water, and their children have a higher mortality rate and
suffer more severe malnutrition than the general population.
The impact of discrimination is compounded when an individual suffers double or multiple
discrimination, such as discrimination on the basis of sex and race or national origin or age. For
example, in many places indigenous women receive fewer health and reproductive services and
information, and are more vulnerable to physical and sexual violence than the general
population.
Non-discrimination and equality are fundamental human rights principles and critical
components of the right to health. The International Covenant on Economic, Social and Cultural
Rights (art. 2 (2)) and the Convention on the Rights of the Child (art. 2 (1)) identify the following
non-exhaustive grounds of discrimination: race, colour, sex, language, religion, political or other

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opinion, national or social origin, property, disability, birth or other status. According to the
Committee on Economic, Social and Cultural Rights, “other status” may include health status
(e.g., HIV/AIDS) or sexual orientation. States have an obligation to prohibit and eliminate
discrimination on all grounds and ensure equality to all in relation to access to health care and
the underlying determinants of health. The International Convention on the Elimination of All
Forms of Racial Discrimination (art. 5) also stresses that States must prohibit and eliminate
racial discrimination and guarantee the right of everyone to public health and medical care.
Non-discrimination and equality further imply that States must recognize and provide for the
differences and specific needs of groups that generally face particular health challenges, such as
higher mortality rates or vulnerability to specific diseases. The obligation to ensure
nondiscrimination requires specific health standards to be applied to particular population
groups, such as women, children or persons with disabilities. Positive measures of protection
are particularly necessary when certain groups of persons have continuously been
discriminated against in the practice of States parties or by private actors.
Along the same lines, the Committee on Economic, Social and Cultural Rights has made it clear
that there is no justification for the lack of protection of vulnerable members of society from
health-related discrimination, be it in law or in fact. So even if times are hard, vulnerable
members of society must be protected, for instance through the adoption of relatively low cost
targeted programmes.4

Neglected diseases: a right-to-health issue with many faces

Neglected diseases are those seriously disabling or life-threatening diseases for which
treatment options are inadequate or non-existent. They include leishmaniasis (kala-azar),
onchocerciasis (river blindness), Chagas’ disease, leprosy, schistosomiasis (bilharzia), lymphatic
filariasis, African trypanosomiasis (sleeping sickness) and dengue fever. Malaria and
tuberculosis are also often considered to be neglected diseases.5
There are clear links between neglected diseases and human rights:
4
. General comment N° 14, para. 18.
5
. However, they occur in both wealthy and low-income countries, and international attention and treatment
options for them have dramatically increased in recent years (see, e.g., the Roll Back Malaria Partnership,
http://www.rbm.who.int).

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• Neglected diseases almost exclusively affect poor and marginalized populations in low-income
countries, in rural areas and settings where poverty is widespread. Guaranteeing the
underlying determinants of the right to health is therefore key to reducing the incidence of
neglected diseases.
• Discrimination is both a cause and a consequence of neglected diseases. For example,
discrimination may prevent persons affected by neglected diseases from seeking help and
treatment in the first place.
• Essential drugs against neglected diseases are often unavailable or inadequate. (Where they
are available, they may be toxic.)
• Health interventions and research and development have long been inadequate and
underfunded (although the picture has changed in recent years, with more drug development
projects under way)6. The obligation is on States to promote the development of new drugs,
vaccines and diagnostic tools through research and development and through international
cooperation.

6
. Mary Moran and others, The new landscape of neglected disease drug development (London School of
Economics and Political Science and The Wellcome Trust, 2005).

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III. CHILD HEALTH AND U.N. CONVENTION ON THE RIGHTS OF THE CHILD

The UN convention on the rights of the child held at New York in 1989 proclaimed in article 6
that every child has the inherent right to life and that the state parties should ensure to the
maximum extent possible the survival and development of the child.
Article 24 of the said convention directs :
1. States Parties recognize the right of the child to the enjoyment of the highest attainable
standard of health and to facilities for the treatment of illness and rehabilitation of health.
States Parties shall strive to ensure that no child is deprived of his or her right of access to such
health care services.
2. States Parties shall pursue full implementation of this right and, in particular, shall take
appropriate measures:
(a) To diminish infant and child mortality;
(b) To ensure the provision of necessary medical assistance and health care to all children with
emphasis on the development of primary health care;
(c) To combat disease and malnutrition, including within the framework of primary health care,
through, inter alia, the application of readily available technology and through the provision of
adequate nutritious foods and clean drinking-water, taking into consideration the dangers and
risks of environmental pollution;
(d) To ensure appropriate pre-natal and post-natal health care for mothers;
(e) To ensure that all segments of society, in particular parents and children, are informed, have
access to education and are supported in the use of basic knowledge of child health and
nutrition, the advantages of breastfeeding, hygiene and environmental sanitation and the
prevention of accidents;
(f) To develop preventive health care, guidance for parents and family planning education and
services.
3. States Parties shall take all effective and appropriate measures with a view to abolishing
traditional practices prejudicial to the health of children.

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4. States Parties undertake to promote and encourage international co-operation with a view to
achieving progressively the full realization of the right recognized in the present article. In this
regard, particular account shall be taken of the needs of developing countries.
Article 27 states that the state parties in case of need shall provide material assistance,
particularly with regard to nutrition, clothing and housing.
Similarly Article 32 mandates the states parties to recognize the right of the child
to be protective from economic exploitation and from performing any work that is likely to be
hazardous or to interfere with the child’s education, or to be harmful to the child’s all around
health or social development.
The Government of India has ratified this convention in December 1992, with the solitary rider
in relation to article 32 of the convention. The Government of India undertook measures to
progressively implement the provisions of Article 327 .
According to Article 1 of the United Nations convention on the rights of the child 1989, “a child
means every human being below the age of 18 years unless under the law applicable to the
child, majority is attained earlier”.
In India the age at which a person ceases to be a child varies in different laws8 . In addition to
the guarantee of fundamental right to life and personal liberty under article 21, the Indian
Constitution also secures to every person including children’s right against exploitation. Article
47 directs the state to raise the level of nutrition and the improvement of public health besides
making efforts to stop consumption of intoxicating drinks and drugs which are injurious to
health accept for medicinal purposes.

7
. (Paul, 2008)
8
. (Shukla and Ali, 2008)

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IV. CONSTITUTION OF INDIA ON CHILD RIGHTS TO HEALTH

The Constitution of India recognises the vulnerable position of children and their right to
protection. Following the doctrine of protective discrimination, it guarantees in Article 15
special attention to children through necessary and special laws and policies that safeguard
their rights. The Right to Equality, Protection of Life and Personal Liberty and the Right against
Exploitation are enshrined in Articles 14, 15, 15(3), 19(1) (a), 21, 21(A), 23, 24, 39(e), 39(f) and
47 of the Constitution and reiterate India’s commitment to the protection, safety, security and
wellbeing of all it’s people, including children. Here is what the relevant Articles say:
Article 23: Prohibition of traffic in human beings and forced labour: Traffic in human beings and
beggars and other similar forms of forced labour are prohibited and any contravention of this
provision shall be an offence punishable in accordance with law.
Article 24: Prohibition of employment of children in factories, etc: No child below the age of 14
years shall be employed to work in any factory or mine or engaged in any other hazardous
employment.
Article 39: The State shall, in particular, direct its policy towards securing:
(e) 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 vocations
unsuited to their age or strength;
(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 47 directs the state to raise the level of nutrition and the improvement of public health
besides making efforts to stop consumption of intoxicating drinks and drugs which are injurious
to health accept for medicinal purposes.

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V. ROLE OF NATIONAL HUMAN RIGHTS COMMISSION IN PROTECTING AND
PROMOTING CHILD RIGHTS TO HEALTH

The ‘rights of children’, is one area on which the National Human Rights Commission (NHRC)
has tried to focus continuously ever since it was constituted in October 1993. It observed from
the very beginning that despite there being major provisions in the Constitution of India for
survival, development and protection of children as well as laws to safeguard their interests
including the fact that the Government of India had ratified the CRC9, children all over the
country, especially those belonging to weaker sections of the society, were found to be
vulnerable and their dignity and human rights were often trampled. Though, the initial few
months of the Commission were spent on making an overall assessment about the range of
issues that affected children, but once this task was completed, the Commission concentrated
its attention on preventing and eradicating the problems of child labour, child marriage, child
trafficking and prostitution, child sexual violence, female foeticide and infanticide, child
rape, HIV/AIDS in children and the problem of juveniles.
The violation of the rights of children has been considered in the Commission from the angle of
health too. In 2000 and 2001, the Commission organised a Workshop on Human Rights and
HIV/AIDS that was followed by a Consultation on Public Health and Human Rights. Both these
had direct relevance to the rights of children. Later, in the year 2004, the Chairperson of the
Commission addressed letters to the Union Ministers for Human Resource Development,
Health and Chief Ministers of all States/Union Territories urging them to take steps to
prevent discrimination of children affected by HIV/AIDS with regard to access to education and
health care. In particular, the Commission asked them to enact and enforce a legislation to
prevent children living with HIV/AIDS from being discriminated against, including being barred
from school.

9
. U.N.Convention on Rights of the Child, 1989

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VI. MAIN CHILDREN HEALTH CHALLENGES IN INDIA

Children in India suffer from various health problems since early childhood. The main health
challenges related to children are nutritional defeciencies, pre & post natal care, anemia during
pregnancy, lack of awareness/education about child health care, inadequate medical facilities
for institutional delivery and immunization especially in rural and far-flung tribal areas,
underweight children at the time of birth, etc. Infant mortality rates (IMR), malnutrition and
incidence of stunted growth needs to be brought down.

(i). Nutrition and child health:

There are 60 million underweight children under the age of five, and 67 percent of pre-school
deaths are associated with malnutrition. In absolute number there are as many as 2.42 million
malnutrition deaths under the age of five each year10. The Infant Milk Substitutes, Feeding
Bottles and Infant Foods (Regulation of Production, Supply and Distribution) Act 1992 regulates
the production supply of infant milk substitutes, feeding bottles, and infant feeds with a view to
the protection and promotion of breastfeeding and ensuring the proper use of infant feeds and
other incidental matters. In People’s Union for Civil Liberties v. Union of India & Others
(2001)11,
(Writ petition (C) No. 196 of 2001, the apex court ordered the Central government to
implement both revised nutritional and feeding norms as well as the financial norms of
supplementary nutrition under the ICDS scheme.

(ii). Anemia and child health:

Among children between the ages of 6 months to 59 months, the great majority 70% are
anemic. This includes 26% who are mildly anemic, 40% who are moderately anemic and 3%

10
. (Unicef, 2005; Sinha, 2006)
11
. AIR 2001 SC

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who suffer severe anemia. According to National Family Health Survey- 312 (NFHS; 2005-06)
83.3% children in the age group of 6-35 months are found to be anemic.

(iii). Immunization and vaccination of children:

Immunization remains the single most feasible and cost-effective way of ensuring that all
children enjoy their rights to survival and good health. According to NFHS-3 (2005-06), coverage
of individual vaccines has increased considerably. Coverage of complete vaccination is 44% (12-
23 Months of age).

(iv). Special health issues relating to children:

In 2009 thirty five million people are living with HIV/AIDS. Although HIV/AIDS has become a
chronic, treatable illness in developed countries because of life saving drug cocktails or highly
active antiretroviral therapy (ART), millions of people in the developing world still lack access to
treatment13. The only act prevalent so far to prevent sexual abuse of children and their
trafficking in India is the Immoral Traffic (Prevention) Act 1956, which was amended in 1986,
with the objective to curb trafficking in young persons both boys and girls.

(v). Child paedophilia; an unholy nexus:

In 1995, the general assembly of world tourism organization, adopted its first resolution on the
prevention of “organized sex tourism,” wherein child sex tourism was denounced and
condemned,” considering it as violation of Article 34 of the convention on the rights of the
child. In the significant Supreme Court judgment of Sakshi v. Union of India & Others,14 The
court had highlighted the procedure of trial for the cases of child abuse and rape, appropriate
legislation to this effect is needed urgently.

12
. National Family Health Survey-2005-06
13
. (UNICEF, 2008)
14
. AIR 2004 SC 3566

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(vi). Children as victims of drugs:
Children, because of their tender age, are particularly prone to be swayed into addiction under
unhealthy influences and to be used as an instrument in drug trafficking. The amended law
makes it mandatory for the states to set up Juvenile Justice Boards and Protection homes at
district levels. But states are dragging their feet on implementation of the Juvenile Justice
(Care and Protection) Amendment Act, 2006.
(vii). Children and disability:
The National Policy on Education 1986 is implemented to achieve the goal of providing
education to all including the disabled. In a historical Judgment in Gaurav Jain V. Union of India
(1997)15, 16 (paras 24, 60) Justice K. Ramaswamy and Justice D.P. Wadhwa delivered this
judgment the court held that it is the duty of government and all voluntary non-government
organizations to take necessary measure for protecting them from prostitution and to
rehabilitate them so that they may lead a life with dignity of person.

VII. MAJOR POLICIES , PLAN OF ACTIONS AND LEGISLATONS RELATED TO

CHILDREN’S RIGHT TO HEALTH

(1). PLANS AND POLICIES:

(a). The National Policy for Children (NPC):

NPC was adopted by Govt. of India on 22nd August, 1974. This policy describes children as
supremely important asset and makes the State responsible to provide basic services to
children, both before and after their birth, and also during their growing years and different
stages of development.

15
. AIR 1997 SC 3021

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(b). National Nutrition Policy, 1993:
National Nutrition Policy identifies nutrition as a multi-sectoral issue and provides that it is
important to tackle the problem of nutrition both through direct and indirect nutrition
interventions.

(c). National Plan of Action on Nutrition (NPAN), 1995:

The National Plan of Action on Nutrition 1995 is a multi-sectoral plan with sectoral
commitments to be undertaken by the 14 nutrition related Ministries/Departments viz.,
Agriculture , Food Production, Civil Supplies and Public Distribution, Education, Forestry,
Information and Broadcasting, Health and Family Welfare, Labour, Rural Development, Urban
Development, Welfare, Women and Child Development etc.

(d). National Policy on Health, 2002:

The National Health Policy was endorsed by the Parliament of India in 1983 and updated in
2002 and it applies to all children between the ages 0-18 years. The policy attempts to address
inequity in access to health services and proposes an increase in primary health expenditure in
order to open more health care centres. Programmes that address children’s need such as
Reproductive and Child Health including the Universal Immunization Programme need to
continue to function to achieve the desired goals. The policy points out that people are not
using the public health services because they do not provide the patients with essential drugs.
Hence the policy outlines the need to improve delivery of necessary drugs through increased
central government funding. The policy outlines provisions of additional and supplementary
training of health sector professionals. In order to expand the number of professional, the state
health departments should include allopathic disciplines and doctors in their system, especially
to delivery basic and primary health services. The policy outlines the priority to school health
education programmes that teach preventive techniques. This will encourage children to learn
appropriate health seeking behaviours.

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(e) National Plan of Action for Children, 2005:
The National Plan of Action for Children (NPAC) was formulated by the then Department of
Women and Child Development (now MWCD) in 2005. The Plan is being monitored by the
Prime Minister’s Office. The Action Plan aims at ensuring all rights to children up to the age of
18 years. It affirms the government’s commitment towards ensuring all measures for the
survival, growth, development and protection of all children. It also aims at creating an enabling
environment to ensure protection of child rights. States are being encouraged to formulate
State Plans of Action for Children in line with NPAC. The Plan has identified several key priority
areas that include children's right to survival, development, protection and participation
besides monitoring and review of policies and programmes. NPAC also stresses the need for
budgetary allocations to achieve child protection goals.

(f). National Policy for Children 2013:

The National Policy for Children 2013 reiterates India’s commitment to safeguard, inform,
include, support and empower all children within its territory and jurisdiction, both in their
individual situation and as a national asset. The State is committed to take affirmative measures
– legislative, policy or otherwise – to promote and safeguard the right of all children to live and
grow with equity, dignity, security and freedom, especially those marginalised or
disadvantaged; to ensure that all children have equal opportunities; and that no custom,
tradition, cultural or religious practice is allowed to violate or restrict or prevent children from
enjoying their rights.

(2). NATIONAL LEGISLATIONS:

(a). Child Labour (Prohibition and Regulation) Act, 1986:

The Act was formulated to eliminate child labour and provides for punishments and penalties
for employing children below the age of 14 years in various hazardous occupations and
processes. The Act provides power to State governments to make rules with reference to the

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health and safety of children, wherever their employment is permitted. It provides for
regulation of work conditions, including fixing hours of work, weekly holidays, notice to
inspectors, provision for resolving disputes as to age, maintenance of registers, etc. Through a
recent notification, child domestic workers up to 14 years of age working in hotels and dhabas
have been brought within the purview of the Act. It is one step towards the total elimination of
child labour.

(b). Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994:
This is an Act for the regulation of the use of pre-natal diagnostic techniques for the purpose of
detecting genetic or metabolic disorders, chromosomal abnormalities or certain congenital
malformations or sex-linked disorders, and for the prevention of misuse of such techniques for
the purpose of prenatal sex determination leading to female foeticide and for matters
connected therewith or incidental thereto.

(c) Juvenile Justice (Care and Protection of Children) Act, 2000:

The Juvenile Justice (Care and Protection of Children) Act, 2000 is a comprehensive legislation
that provides for proper care, protection and treatment of children in conflict with law and
children in need of care and protection by catering to their development needs, and by
adopting a child-friendly approach in the adjudication and disposition of matters in the best
interest of children and for their ultimate rehabilitation through various institutions established
under the Act. It conforms to UNCRC, the UN Standard Minimum Rules for the Administration
of Juvenile Justice (The Beijing Rules) 1985, the UN Rules for the Protection of Juveniles
Deprived of their Liberty and all other relevant national and international instruments.
It prescribes a uniform age of 18 years, below which both boys and girls are to be treated as
children. A clear distinction has been made in this Act between the juvenile offender and the
neglected child. It also aims to offer a juvenile or a child increased access to justice by
establishing Juvenile Justice Boards and Child Welfare Committees. The Act has laid special
emphasis on rehabilitation and social integration of children and has provided for institutional

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and non-institutional measures for the care and protection of children. The non-institutional
alternatives include adoption, foster care, sponsorship, and after care.

(d). Commissions for the Protection of Child Rights Act, 2005:

The Act provides for the Constitution of a National as well as State Commissions for the
protection of child rights in every State and Union Territory. The functions and powers of the
National and State Commissions will be to:
• Examine and review the legal safeguards provided by or under any law for the protection of
child rights and recommend measures for their effective implementation
• Prepare and present annual and periodic reports on the working of these safeguards
• Inquire into violations of child rights and recommend initiation of proceedings where
necessary
• Undertake periodic review of policies, programmes and other activities related to child rights
with reference to treaties and other international instruments
• Spread awareness about child rights among various sections of society
• Establish Children's Courts for speedy trial of offences against children or of violation of child
rights
• Get State governments and UT administrations to appoint a Special Public Prosecutor for
every Children’s Court
Apart from these laws mainly concerning children, there is a host of related social legislations
and criminal laws which have some beneficial provisions for the care, protection and
rehabilitation of children. The laws relating to commerce, industry and trade have some
provisions for children, but they hardly provide any protection or cater to their developmental
needs. Despite the legislations, there are still major gaps in the legal provisions relating to child
abuse in myriad situations, particularly in cases of trafficking, sexual and forced labour, child
pornography, sex tourism and sexual assault on male children. The Ministry of Women and
Child Development is formulating a comprehensive legislation on Offences against Children.

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(e). The Prohibition of Child Marriage Act, 2006:
The Child Marriage Restraint Act, 1929 has been repealed and the major provisions of the new
Act include:
• Every child marriage shall be voidable at the option of the contracting party who was a child
at the time of the marriage
• The Court while granting a decree of nullity shall make an order directing the parties, parents
and guardians to return the money, valuables, ornaments and other gifts received
• The Court may also make an interim or final order directing the male contracting party to the
child marriage or parents or guardian to pay maintenance to the female contracting party to
the marriage and for her residence until her remarriage
• The Court shall make an appropriate order for the custody and the maintenance of the
children of child marriages
• Notwithstanding that a child marriage has been annulled, every child of such marriage shall
be deemed to be a legitimate child for all purposes
• Child marriages to be void in certain circumstances such as minor being sold for the purpose
of marriage, minor after being married is sold or trafficked or used for immoral purposes, etc
• Enhancement in punishments for male adults marrying a child and persons performing,
abetting, promoting, attending, etc a child marriage with imprisonment up to two years and a
fine up to one lakh rupees
• States to appoint Child Marriage Prohibition Officers whose duties include prevention of
solemnisation of child marriages, collection of evidence for effective prosecution, creating
awareness and sensitisation of the community, etc

(f). Protection of Children against Sexual Offences (POCSO) Act, 2012:

The Protection of Children from Sexual Offences Act (POCSO), 2012 has been drafted to
strengthen the legal provisions for the protection of children from sexual abuse and
exploitation. For the first time, a special law has been passed to address the issue of
sexual offences against children. The POCSO Act prescribes five sexual offences against children
- penetrative sexual assault, aggravated penetrative sexual assault, sexual assault, aggravated

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sexual assault, sexual harassment, and using a child for pornographic purposes. Abetment of or
an attempt to commit these offences is also punishable under the Act. These offences are
gender neutral vis-à-vis the perpetrator as well as the victim. The Act requires the State
Governments to designate the Sessions Court in each district as a Special Court to
try offences under the Act. If, however, a Children’s Court under the Commissions for
Protection of Child Rights Act, 2005 or Special Court for a similar purpose has been notified in a
district, then that court will try offences under this Act.

VIII. ROLE OF SCHOOLS IN PROMOTING CHILDREN’S RIGHT TO HEALTH AND

HEALTH PROMOTION IN SCHOOL IN SCHOOL CURRICULA:

Schools play a vital role in the overall development of a child into a competent productive adult
who contributes usefully to society. Health is an important aspect of development of children
and education is an important determinant of health. Schools are often the strongest social and
educational institutions available for execution of interventional programs as they have the
required structure and governance. Schools have profound influence on thinking patterns and
behaviors of children, their families, and community in general.

(a). Mid-Day Meal Scheme (MDMS):

In view to provide nutritional meal Mid-day Meal Scheme (MDMS) is being implemented since
15th August 1995. It has played a pivotal role in increasing enrolment, attendance and
improving the health of children. Under the scheme hot cooked food is served to all children
attending classes I-VIII in Government, local body, government-aided, and National Child
Labour Project Schools, EGCs/alternate and innovative education centres including
madarsas/maqtabs supported under the SSA across the country. The cooked mid-day meal
provides an energy content of 450 calories and protein content of 12 grams at primary stage
and an energy content of 700 calories and protein content of 20 grams at upper primary stage.

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Adequate quantity of micro-nutrients like iron, folic acid, and vitamin ‘A’ are also recommended
for convergence with the NRHM.

(b). Health Promotion & School Curricula:

Adequate lessons related to health care, maintaining hygienic conditions in schools and at
home, role of games and sports for physical and mental fitness, etc are included in curricula of
each standard/class. Physical exercise/yoga and regular health check up are also included in
priority areas of the RTE 2009. Physical education, games & sports are being made an integral
part of curriculum in schools for holistic development of children. The schedule of the RTE Act
mandates that all schools shall be provided play materials, games and sports equipments.

IX. EXAMPLES OF GOOD PRACTICES UNDERTAKEN TO PROTECT AND PROMOTE

CHILDREN’S RIGHT TO HEALTH, PARTICULARLY IN RELATION TO CHILDREN IN
ESPECIALLY DIFFERENT CIRCUMSTANCES:

(a). National Rural Health Mission:

The NHRM launched in 2005 aims to improve accessibility to quality health care for the rural
population, bridge gaps in health care, facilitate decentralized planning in the health sector and
bring about inter-sectoral convergence. The NRHM has components such as pulse polio
immunization and routine immunization for protection of children from life threatening
conditions that are preventable such as tuberculosis, diphtheria, pertussis, tetanus, polio and
measles.

(b). Reproductive and Child Health (RCH):

The RCH has components such as pulse polio immunization and routine immunization for
protection of children from life threatening conditions that are preventable such as
tuberculosis, diphtheria, pertussis, tetanus, polio and measles.

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(c). Janani Suraksha Yojana (JSY):
The JSY was launched with focus on demand promotion for institutional deliveries in states and
regions where these are low. It integrates cash assistance with delivery and pot-delivery care. It
targets lowering of MMR by ensuring that deliveries are conducted by skilled birth attendants.
The JSY scheme has shown rapid growth in the last three years, with 90.37 lakh beneficiaries in
2008-09 to 106.96 lakh beneficiaries in 2010-11.

(d). Janani Shishu Suraksha Karykram (JSSK):

The JSSK is a new initiative launched on 1st June 2011 to give free entitlements to pregnant
women and sick new borns for cashless delivery, C-Sections, drugs and consumables,
diagnostics, diet during stay in the health institutions, provision of blood, exemption from user
charges, transport from home to health institutions, transport between facilities in case of
referral, and drop back from institutions to home.

X. JUDICIAL RESPONSES IN INDIA:

The Constitution of India provides a protective umbrella for the rights of children. To ascertain
the constructive role of the state in relation to children, in the landmark judgment of M.C.
Mehta v. State of Tamil Nadu16 (1997), (24), the apex court held that children, below the age of
14 years cannot be employed in any hazardous industry or mines or other works. The
description of hazard does not take into account other hazards which children are prone to, viz,
mental, social spiritual and psychological hazards. Not only low remuneration or long hours of
work but also these children are exposed to many occupational risks. The risks are countless in
number in different sectors. To list a few, the table no 1 reveals the health hazards of child
labour in organized sector.

16
. AIR 1997 SC 699

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The Hon’ble Supreme Court in Sheela Barse and another v. Union of India17 has declared that a
child is a national asset. It is the duty of the state to look after the child with a view to ensuring
full development of its personality.
In pursuance of the constitutional directive of primary education the Parliament has now
enacted, The Right of Children For Free and Compulsory Education Act 2009 which has come
into force w.e.f. 1st April 2010. The Child Labour (Prohibition and Regulation) Act, 1986 has
also made certain provisions regarding health and safety. Section 13 of the Act deals with the
health and safety measures of the child employed in occupations or in processes.

XI. HEALTH HAZARDS IN CHILDREN:

Occupation Health Hazards
1. Beedi Industry Chronic Bronchitis & Tuberculosis
2. Glass Industry Asthma, Bronchitis, Tuberculosis, Eye Problems
3. Handloom Industry Asthma, T.B.
4. Zari & Embroidery Eye defects
5. Gem & Diamond Cutting Eye defects
6. Construction Stunted growth of child
7. Rag Picking Tetanus, skin diseases
8. Pottery Asthma, Bronchitis, T.B.
9. Stone quarries/slate quarries Silicosis

XII. MAIN BARRIERS WHEN ARE TRYING TO IMPLEMENT CHILDREN’S RIGHT TO

HEALTH:

(a). Improper delivery of programmatic services;

(b). Lack of awareness among women due to low education;
(c). Poor amenities for drinking water and sanitation.

17
. (1986) 3 SCC 596

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XIII. CONCLUSION:
The World Health Organization’s reports (2007) in which international health regulations which
are issued from time to time act not only as a guiding framework for domestic policies, but
also help in strengthening the link between human rights and health. The judiciary in India has
attempted to establish the inter-relatedness between rights through the expression of the
understanding of the ‘protection of life and liberty’ under Article 21 of the Constitution of India
by adopting liberal, flexible approach in order to create harmony between Part III & Part IV of
the Constitution of India. This has resulted in the recognition of the ‘right to health’ as a part of
Article 21. Unfortunately, the findings of the third National Family Health Survey (NFHS-3) put
the political class to think seriously. The infant mortality rate is 4718 (SRS, 2011), this is far away
from the Millennium Development Goal (MDG) IMR of 30 to be achieved by 201519 . Much of
these deaths are preventable through childhood immunization. But the reach of the country’s
Universal Immunization Programme (UIP) continues to remain low, which is the result of a
weak public health care system. India has one of the highest levels of child malnutrition in the
world, higher than most countries in Sub Sahara Africa. India is not currently close to achieve
the goals set in relation to malnutrition and under nourishment in the UN millennium
development goals (Gonsalves 2006).

18
. SRS, 2011
19
. Ramachandran and Rajalakshmi 2009

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XIV. SUGGESTIONS AND WAY FORWARD:
Overall, child health facilities are found to be grossly inadequate in India. Thus, for transforming
the concept of child health as a ‘Human Right’ into reality and for overcoming the obstacles on
its way to realization, following measures can be taken;
1. Each village should maintain a list of community midwives and trained birth attendants,
primary school teachers and anganwadi workers who may be entrusted with various
responsibilities in implementation of integrated service delivery (National Population Policy,
2000).
2. A holistic approach to children health which includes both nutrition and health services
should be adopted and special attention should be given to the needs of women, and the girl at
all stages of the life cycle.
3. Sex selection and abortion of the female fetus is big business among big players. The
message needs to go out to the offending medical professionals and bureaucrats in charge for
implementing the PNDT Act, that female feticide will be treated as the very serious crime and
be effectively punished accordingly.
4. Nearly 100 million people live in urban slums with little or no access to potable water,
sanitation facilities and health care services. This contributes to high infant and child mortality
and primary health care needs to be provided.
5. It is necessary to embed universal coverage in wider social protection schemes related to
health care and to complement it with specially designed, targeted forms of outreach to
vulnerable and excluded groups of the society.
6. The mobilization of groups and communities to address what they consider to be their most
important health problems and health related inequalities is a necessary complement to the
more technocratic and top down approach to assessing social inequalities and determining
priorities for action.
7. Our government should adopt, implement, and periodically review, health policies, strategies
and plans of action, on the basis of epidemiological, sociological and environmental evidence,
addressing the health concern of the whole population. It should include methods such as right

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to health indicators and benchmarks, by which progress can be closely mentioned; and
evaluate them on the basis of outputs.
8. The nature of hierarchical health governance, administratively, financially and technically,
also contributes to the poor state of the public health sector. Further, “Public Health,
sanitation, hospitals and dispensaries” are state subjects. Health should be brought under the
“Concurrent list” in the Constitution, which will empower both the centre and the states to
handle health issues effectively.
9. Last but not the least, there should be enacted Pubic Health Law which should act as an
umbrella legislation to regulate implement, monitor various health legislation. ‘Right to health’
should be given the status of fundamental right in the chapter of fundamental rights through
amendment in the Constitution. In fact, health is a low cost, high return investment that can
give a boost to every aspect of child development and also to a nation’s overall progress and
prosperity. There is an urgent need that the national policy making on health must get in tune
with human rights jurisprudence and provide, at least, basic health care services as a matter of
right to every citizen, especially, and to the children who are torch-bearers of the nation.
Therefore, National Health Bill 2009 should be passed on priority basis so that people’s health
could be accorded top priority along with education and food security.
To conclude, ‘right to health’ cannot only be conceived as a traditional right enforceable against
the state, rather it has to be acknowledged as a positive human right at a global level20.

20
. (Justice K.G. Balakrishnan, 2008).

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XV. BIBLIOGRAPHY

BOOKS REFERED:

1. Dr. J.N. Pandey, THE CONSTITUTIONAL LAW OF INDIA, 15th Edition, Central Law Agency,
Allahabad

REPORTS, RESEARCH PAPER, ARTICLES AND CONVENTIONS REFERED:

1. NHRC Report on CHILDREN IN INDIA AND THEIR RIGHTS By Dr. Savita Bhakhry
2. U.N. Convention on the Rights of the Child, 1989
3. Report of the Human Rights Council on the Subject OHCHR Study on Children’s Right to
Health By NHRC
4. Child Rights- A Handbook for Journalist By PRESS INSTITUTE OF INDIA AND UNICEF-
Unite For Children
5. Research Paper on CHILDREN’S RIGHT TO HEALTH IN INDIA: LEGAL PERSPECTIVES By
Dr. Anu and Dr. Pawan Kumar(Volume 1, Issue 6, Nov-2012 of International Journal of
Scientific Research)
6. OHCHR-WHO Publication on THE RIGHT TO HEALTH

WEBSITES REFERED:

1. http://www.indiankanoon.org

2. http://www.legalsutra.org

3. http://www.lexisnexis.com

4. http://www.supremecourtofindia.nic.in

5. http://www.delhihighcourt.nic.in

6. http://www.acronyms.thefreedictionary.com

7. http://www.drj.com

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8. http://www.revofneg.treasury.gov.au

9. http://www.scribd.com

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