This article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. In this article she has discussed Judicial Review on Child labour with landmark cases.
“There is no greater violence than to deny the dreams of our Children.”
In today’s era, few issues attract the same amount of popular attention in developing countries like Child Labour. The International Labour Organization (ILO) states that many children are engaged in Child Labour worldwide. And nearly all these have made laws to protect children from the whimsy of the labour market and to promote school participation.
India in many ways personifies the contradiction. The world’s largest democracy has a most powerful legal framework with the express intention to end child-labour and yet it appears that India is witnessing the maximum incidences of child labour in the World. There are about 300 Central and State Statutes concerning children to protect and help them in furtherance of the main motive of child labour welfare in our National charter. India follows the policy of pro-activism in tackling the issue of child-labour.
The study for children in general and child labour, in particular, is depicted through the Articles of the Constitution of India. And the Indian Judiciary is carrying forward the similar spirit. The contribution of Indian Judiciary with regards to child labour is highly commendable and it has in a real sense brought the revolution in the field of child labour in India. Indian Judiciary has played a crucial role to curb the problem of child labour and has manifested its concern for child labour by guiding job or action under the court’s order by the direct application of constitutional provisions. It has marked landmark judgments for deleting the issues of child labour in India.
With regard to child labour in India, Justice Subba Rao, the former Chief Justice of India, rightly remarked; “Social justice must start with the child. Unless a soft plant is properly sustained, it has a pocket chance of multiply into a strong and useful tree. So, the first preference in the plate of justice should be stated to the well-being of children.
The issue of Child Labour has always persisted in some form or the other in all societies of the world. Children were expected to accompany their parents while working in the field and to help with household works. But most of the work was being done under the check of the parents, instances of exploitation were rare and even today this sort of work is not considered exploitative.
The worst forms of manipulation of children commenced during the Industrial Revolution in India. It was at this period that machinery took above many tasks back executed by hand and was concentrated in huge factories. The holder of these factories understands that handling these machines did not need adult strength, and children could be rent for the work in much more inexpensive than adults.
In India, in the agriculture sector child labour has always existed. Children and their parents used to work together on the farms. Moreover, the duty of taking livestock to feed consistently assigned to children. Although this task was tough and fatigue, it did not marshal to a aggravate of their future anticipation. School facility was not available in the majority of the villages and still, people were earning money by working in the field. So this work served as training for their future. With the begin of British arrival more and more child exploitation increased in India. As the Industrial sector was established so child work made a force to work in an inhuman condition with no wages. Laws against child labour were passed under the Employment of Children Act of 1938. These strive at legislation unsuccessful as they failed to address the root seed of child labour in India- poverty. Until and unless the public was driven out of poverty, it was next to impossible to withdraw the children out of the labour force.
Role of stockholders
The researchers have further classified the role played by different stakeholders in society to eradicate child labour. The stakeholders are divided into four heads which are described hereunder:
Ever since the period of independence, the government of India has taken several steps eliminating the risk of child labour. There has been specific legislation aimed at curbing the problem and punishing the offenders. Several social programs were conducted for the purpose of rehabilitation for children who were now free from the child labour run at the Central and State level. In recent upcoming years, the main emphasis is given on giving basic and primary level education to every child.
In 1979, the first statutory committee was formed at a Central level to examine and inspect on the subject of Child labour in India and the title of the committee is the Gurupadswamy Committee. The board was also mission with framing definite recommendations to check child labour. Taking into account the holding and suggestion of the Gurupadswamy Committee, the Union Government approved the Child Labour (Prohibition and Regulation) Act in 1986. The Act forbids children from being employed in particularly hazardous occupations and at the same period adjust their working condition in other non-hazardous occupations and operation. And a lot is being done in the present time by bringing a number of legislation and regulations to tackle the issue of child labour.
In a country like India, Media can play a proactive role in bringing about behavioural change in masses. Role of media has always proved to be decisive in democracy as well as the socio-economic development of the country. Mass-Media can present chief and notable role in putting such as child labour on public and political agenda. Media can take various forms.
- Mass Media (Audio-Visual)- Mass media is important as it has the ability to communicate effectively with a huge amount of people at the same duration. This medium leaves the audience with an image, which has more shelf life than a text or only a voice-driven message. This also increases the credibility of the message being delivered. The barrier of illiteracy is removed and the communication can be understood by all – literate as well as illiterate. Though it is an expensive medium considering its reach and speed is a suitable medium to meet the objectives. The other advantage of this medium is the imagery created. Media innovations and strategic buying of media can help in optimizing the results. This medium is most effective in delivering a simple, clear and focused message. Communicating a lot of information using this medium has high-cost implications and can create confusion.
- Mass Media (Print media)- This is an effective medium as it, too, reaches a huge amount of people in the same period. Further, this is a credible and relatively less costly medium. The existence of various vernacular print mediums also helps us customize the communication as per the language understood by the people. This medium is useful in giving detailed information but to optimize the impact of the communication the focus should be on the key message. In the use of print media, the use of visuals is more effective. This media has restricted use, only among the literate audience.
- Traditional Media (Street theatre, puppets, storytelling, folk dances etc.)-The main advantage of this medium is that communication can be customized as per the audience need by using local jargon and slang. Familiar messages and situations can be selected to generate empathy. This medium is more personally relevant than another medium. One can use local talent and involve the community. It has the potential to be self-sustaining at low/no cost. It helps in stimulating discussion of topics among families, friends, neighbours etc. within the community. The restricted reach is a problem coupled with the need for training and support to such media at the local level.
NGOs are constantly sensitizing trade organizations to finish this social wrong, and locals have been made watchful to disclose an example of child labour at businesses. Delay in schooling and due to lack of parental care creates a negative environment where a lot of activities are taking place such as human trafficking and enrollment of uncontrolled activities for labour growth, which means NGOs intervention cannot be undermined. While civil society has sworn to join and wind-up child labour, there is a flat powerful requirement to make this a people’s issue. Officers and government can only formulate the policies relating to issue but ignoring abuse each day of a child will lead to attack at the individual level also.
There shall be active participation of local people. Individuals should grow the capacity to act towards a common perception. They are supposed to think critically and creatively in taking action. Every individual should recognise and enact to taking power for the outcomes. A local person has a vital act to play as they are resourceful in taking initiatives and finding solutions. There are many methods to assist and every work that depress this inhuman use, no matter how tiny, will go a prolonged way. Every individual can contribute in dealing with this issue by adopting the following practices:
- Be a conscientious consumer.
- Educate yourself on the laws.
- Use the fear of retribution for good.
- Be vigilant and report abuse.
- Spread awareness among the parents of child labourers.
- Volunteer with some pioneer movements or organization to eradicate child labour.
- Ensure a child labour free community.
The Courts of India have proved themselves to be the torchbearer of progressive attitudes towards Child Labour. Courts acted as Harbinger for this issue. The authors have classified the last 34-year court decisions on Sanitation issues & narrated hereunder:
The First Period, 1982 – 1992
- In Peoples Union for Democratic Rights vs. Union of India: Commonly known as ‘Asian workers case’, it was escorted to the notice of the Supreme Court that children under 14 years of age employed in the construction activity. It was said that construction activity is plainly a dangerous work and it is definitely important that the employment of children above the age of 14 years must be restricted in every kind of construction task. Cite to Article 24, Justice P.N. Bhagavathi and Justice Bahrul have held that “apart from the need of International Labour Organization Convention No.59, we have Article 24 of the Constitution which even if not attend up by suitable legislation, must “Proprio vigour” and construction act plainly and absolutely a hazardous employment, it is open that by ground of constitutional prohibition no child under 14 years can be allowed to be unavailable in construction work”.
- In Francis Coralie Mullin vs. Union Territory of Delhi: The court held that Article 21 covers protection of health and strength of workers, men, women and minorities of children versus abuse. According to the court, the occasion and services for children to grow and build in a healthy way and in order of freedom and decorum and educational benefits.
- On 25 April 1984 in Laborers Working on Salal vs. the State Of Jammu And Kashmir a bench of Justice P Bhagwati, R Misra directs “That no child under the age of 14 years is employed by any contractor/sub-contractor on any factories in the schemes. In case any child labourer is included by any contractor/subcontractor prompt orders for their break should be furnished forthwith and an outline report provided to the sanction”.
- In Bandhua Mukti Morcha v. Union of India and others, Justice Bhagwati remarked that “it is a problem which needs urgent attention of the Government of India and the State Governments and when the Directive Principles of State Policy have obligated the Central and State Government to take steps and adopt measures for the purpose of ensuring social justice to the have-nots and the handicapped. It is not right on the part of the concerned governments to shut their eyes to the inhuman exploitation to which the bonded labourers are subjected”. It is therefore essential that whichever be the State Government it should, where there is bonded labour, admit the existence of such bonded labour, and make all possible efforts to eradicate it. By doing so, it will not only be performing a humanitarian function but also discharging a constitutional obligation and strengthening the foundations of participatory democracy in the country”.
The Second Period, 1992 – 2002
- In Sheela Barse v. Union of India, the court held “it was held that child is a state blessing, and it is the responsibility of the state to focus behind the child with a perspective to guarantee proper development of its personality. Judicial institutions have played an essential role not only for fixing issues but also has regularly attempt to grow and expand the law so as to answer to the desire and dreams of the people who are looking to the judiciary to give life and fulfilled to the law”.
- In the year 2002, In TMA Pai Foundation v. Union of India, “The court provided that, it is the fundamental duty of a parent or guardian to provide opportunities for education to his child who is under the age of 14 years. In completion of this development in the sector of education accept it as a fundamental right, the Parliament has enacted the Right of Children to Free and Compulsory Education Act, 2009 which impart for free and compulsory education to all the children of the age of 6 to 14 years”.
- On 10 December 1996 in M.C. Mehta vs State Of Tamil Nadu And Others, a bench of Kuldip Singh, B.L. Hansaria, S.B. Majmudar observed, “Taking advice therefrom, we are of the vision that the affront employer must be demand to pay compensation for every child employed in violation of the provisions of the Act a sum of Rs. 20,000 and the inspectors, whose arrangement is envisioned by Section 17 to secure consent with provisions of the Act, should do this task. Under Section 17 inspector scheduled to examine that each child employed under violation of this act, each concerned employer will pay Rs. 20,000 given amount will be deposited in a fund to be known as “Child Labour Rehabilitation-cum-Welfare Fund”.
- In Bandhua Mukti Morcha v. Union of India and others, “public interest litigation was filed alleging employment of children aged below 14 in the Carpet Industry in the State of Uttar Pradesh. Reports of a Commissioner/Committee appointed by the Supreme Court confirmed forced employment of a large number of children, mostly belonging to SCs and STs and brought from Bihar, in carpet weaving centres in the State. It was held by the Court that the State is obliged to render socio-economic justice to the child and provide facilitates and opportunities for proper development of his personality”.
- On 6 June 1997 in A. Srirama Babu Vs. The Chief Secretary, a bench of V M Kumar court has observed, “This needs a relook and an abolition of such difference would certainly go a long way in increasing employment potential for grown up and dissuade the employer from employing child labour”. So it is essential that the state should step in to retard the trend to employ child labour and directs that the State shall take every step to educate the people to prevent child abuse and child labour and the State should create a separate independent department concerned with child welfare. Moreover, the State should maintain a record of the birth and progress of the child.
It should monitor the same. A child, after he is born, should not be allowed to melt and disappear in the vast society. The State should be able to monitor his education, health, progress, etc. The State should maintain records till he attains the age of 14 and should take such effective steps to prevent vagrant child roaming in the city and towns, organising and maintain aftercare home to take over the vagrant children. Appropriate legislation is made and is enforced strictly against vagrancy of children. Court also directed State to establish as many after-care homes as are feasible where the street children are taken care of and are trained to be useful citizen of the Country and the State should clothe itself with the power to proceed against the parents or guardians who willfully neglect the welfare of the children or their wards and who encourage them to lead a vagrant life. Begging in the street by children or employing children for begging to be made an offence and such provisions should be strictly enforced”.
- On 11 April 2000 in Mahesh Kumar Garg and Ors. Vs. State Of U.P. And Ors, a bench of Pradeep Kant held “I, therefore, provide that in all cases of like nature an inspection has to be made by the Inspector and in case, the Inspector is of the view that the Child Labour has been engaged in contravention of the Act, a show-cause notice shall be issued to the offending employer/occupier who within the time stipulated, may file objection against the said inspection report raising the plea regarding the age or any other relevant objections”.
- On 12 January 2001 in the State Of Guj. vs Bhupendrakumar Jagjivandas, a bench of D Mehta held “the sentence imposed by the Trial Court shall stand modified as – it is ordered that the accused shall pay a fine of Rs. 10,000/- (Rupees Ten Thousand only) for violation of provisions of Section 27 of the Factories Act, 1948, in default thereof the accused shall undergo simple imprisonment of three months. It is clarified that the amount of fine that may have already been paid shall be deducted and only the balance amount shall be payable by the accused”.
The Third Period, 2003- 2012
- On 5 April 2006 in Ganesh Ram vs State Of Jharkhand And Ors, a bench of S Mukhopadhaya, N Tiwari held “If a person, below 14 years of age, is appointed, penal order can be passed against the employer under the Child Labour (Prohibition and Regulation Act 1986) but no order, penal in nature, be passed against the employee”.
- On 24 December 2010 in Bachpan Bachao & Ors. vs Union Of India & Others, “Delhi High Court decides upon the duties of the Commission and the Committee.
- The Bench and the Jury shall entertain complaints made by the domestic workers herself/himself of through her/his guardian, NGOs managing Childline services, the employer or the police in appropriate cases.
- The Commission and the Jury may hear the following types of cases
- Abusive working conditions which are after the physical extent of the child in situations where persons between the ages of 14 and 18 are employed;
- Long hours of work;
- Absence of principal services including medical care and food.
- The Bench or the Committee shall determine the objection build within a duration of 30 days”
The Last Period, 2011 and onwards
- On 20 March 2012 in Roshan Gupta V. The State Of Bihar & Ors, “ the writ petition has been filed challenging the orders contained in Annexures 1 and 2 by which the petitioner has been imposed a fine of Rs.20,000/-The main submission on behalf of the petitioner is that without giving him an opportunity to explain the circumstances under which Ravi Kumar was working in the shop, fine has been imposed on the ground that the petitioner had employed a child as labour in his shop. In the meantime operation of the order contained in Annexure 1 and 2 shall remain stayed. The writ petition is disposed of with the aforesaid observation and direction”.
- On 4 September, 2015 in Jayakumar Nat & Anr vs State Of NCT Of Delhi & Anr, “Delhi High Court directs the Govt. of NCT of Delhi to come out with a proper scheme to address the issue of rehabilitation of these rescued children by providing some kind of economic help so that the parents or guardians do not force them to work as child labourers again to meet with their basic needs and to supplement their income for their basic survival”.
- On 18 January 2016 Whether This Case Involves A vs. As In Both The Appeals, “Gujarat high court held that any child/children or their parents/guardians can approach before the State Commission for the protection of child rights under Section 31(3) of the Act for ventilating the grievance and appropriate action shall be taken for inquiring into the complaints as per Section 14 of the Protection of Child Right Act,2005 and further action under Section 15 of Protection of Child Right shall be taken in accordance with law”.
- On 11 November 2016, In Court On Its Own Motion vs The State Of Jharkhand, “Petitioner said nothing has been done with regard to settlement of the child labour and further the State has also not disclosed anything as to how they will cope with this horrifying situation of child labour where Jharkhand High Court directs to file an affidavit about the stage of investigation which will also indicate that how many schemes have been implemented in the State of Jharkhand by the Child Welfare Department to combat and rehabilitate child labour”.
It is relevant to mention that the Judiciary played a very important role in the protection of child labour. The Judiciary has always taken preventive measure to safeguard them from the employer by fixing their working hours, providing medical facilities, fixed the number of wages etc. The Judiciary has also directed State authority to create an environment where the child can grow and develop his personality without facing any abuse as mentioned in our constitution. What this paper calls for, more than anything, is a context-sensitive approach to understanding child labour in a country as large and diverse as India.