CHAPTER - 1
INTRODUCTION
1
Bhagwan Pd. Singh and Shukla Mohanty, Children at work:Problem and policy
options, B.R. Publishing Corporations, New Delhi-110007
2
The United Nations Children's Fund (UNICEF), New York, 1999 UNICEF 3 UN
Plaza New York, NY 10017
2
7
Tara Ali Beg “The child in Asia”, Peoples Publishing House, New Delhi, (1979),
99.64-65
8
Benjamas Prachan Khandee et al., “Thailan” in Elias Mendelievich (ed), “Children at
work” ILO, Geneva,, p.140
9
Hayes Davi: “The Bane of Child Labour: Buying and Selling in Thailand”, The
Times of India, October, (1980).
10
Robin Porter: “Child Labour in Hong Kong”, Social Welfare, November (1976),
pp.10-11.
11
Netoz.M, “Children and Adolescents in Brazil: Work Poverty Starvation”,
“Development and Change” 13(a) (Oct., 1982), pp.532-533.
4
17
Christopher.J.Daniel: “Child Worker has come stay” Social Welfare, (Nov 1976), p/6
18
Sandor Komoloski: “Changes in Hungarian Families”. Existies. “The problem and
Science of Human Settelments”, 45 (272) Sep-Oct. (1978), p.369.
19
Alfred De Souza (Ed), “Children in India”, Oxford India Publications, (1981), p.66.
6
children and the parents were punished, if they did not send their
children to the hermitage of Guru or university after their attaining
the age of eight years. Even during the British rule, the government
has passed various acts to minimize the exploitation of the children,
who constitute the most vulnerable group of the society. A number of
enactments of child labour laws have concentrated mainly on such
aspects as minimizing working hours, increasing the minimum age for
child employment etc.,
After independence, the first step in this regard was the
amendment of the Factories Act, 1948, which revised minimum age
for entering into employment in factories to 14 years. The Minimum
Wages Act, the Mines Act, the Plantation Labour Act, the Merchant
Shipping Act, the Shops and Establishment Act, the Motor Transport
Workers Act, the Apprentice Act, the Bidi and Cigar workers Act and
the Child Labour(Prohibition and Regulation) Act, 1986 are the other
legal enactments passed by the government to protect the conditions
of child labour20.
Apart from the constitutional and legal enactments and various
committees, the government tried to protect the children through five
year plans.Before the fifth five year plan, the government focused on
improving the conditions of child labour. However from the fifth plan,
the government changed its policy from child welfare to child
development through a variety of programs.
The United Nations opined that children need special protection
because of their tender age and physique, mental immaturity and
incapacity to look after themselves.
ILO, one of the UN systems of organizations, has expressed
much concern for child labour and made several policies for the well
being of working children as also for the elimination of child labour.
20
Convention and Rights of the Child , Country Report , India February 1997, Department of Women
and Child Development, Ministry of Human Resource Development , Govt. of India , New Delhi ,
1997.
8
child labour.
Around seventy percent of children work in an unpaid work for
their families which are poor. 36 million children out of 250 million
world child labour (14.37 percent) are Indian child labour population.
Every second child of Indian child labour has no access to
primary education. Every third child in India does not see her happy
teen years.
Child labour in India is socio-economic phenomenon arising
essentially out of poverty, lack of development, lack of education and
due to social customs. United Nations secretary General Kofi Annan
has commented that “Child labour has serious consequences, which
stay with the individual and with society for far longer than the years
of child hood. They face adulthood unemployment and illiteracy in
future.”21 Due to the hard working conditions and their feeling that
they are supporting the family along with their parents they
themselves force adulthood on them.
This feeling of adult hood is the main reason for child
marriages. The majority of working children in India are rural children
in the unorganized agricultural and allied sectors which are the
traditional sectors of the Indian economy that often provides
employment for all members of a family. They work primarily due to
socio-economic factors and do so along with and under the
supervision of their parents and guardians. They do not fall in the
category of forced or indentured child labour. Every working child can
not be regarded as a forced or indentured child labourer. The
distinction between children working in a family and forced or
indentured child labourers must constantly be kept in sight.
A child is a person who has not completed his fourteenth year of
age (The Child labour Prohibition and Regulation Act -1986.) The child
labour is a major challenge of our time, massive in scale and coercive
and fatal in its consequences. It is a cruel to children, insulting to the
21
The quotations collected from different literature of U.N.O and I.L.O. placed in web
sites.
10
CHAPTER II
INTERNATIONAL EFFORTS IN ABOLITION OF CHILD
LABOUR
2.1 INTRODUCTION
The United Nations' 1989 Convention on the Rights of the Child,
or CRC, is the first legally binding international instrument to
incorporate the full range of human rights—civil, cultural, economic,
political and social rights. Its implementation is monitored by the
Committee on the Rights of the Child. National governments that
ratify it commit themselves to protecting and ensuring children's
rights, and agree to hold themselves accountable for this commitment
before the international community. The CRC is the most widely
ratified human rights treaty with 190 ratifications. Somalia and the
USA are the only two countries which have not ratified the CRC. The
CRC is based on four core principles, namely the principle of non
discrimination, the best interests of the child, the right to life, survival
and development, and considering the views of the child in decisions
which affect them (according to their age and maturity).22
2.2 INTERNATIONAL LABOUR ORGANISATION
Since its foundation in 1919, the ILO has been much concerned
with the gradual elimination of child labour and the promotion of well
being of children in the fields within its competence. At its first
session, i.e., the International Child Labour Conference of 1919, a
convention was adopted to fix the minimum age for admissionof
children into industrial employment. From this first convention, which
brought to light the fact that children were working in terms of wage
employment in formal sector manufacturing, a world-wide awareness
22
Early Childhood Education [Four Volumes] - Page 818Edited by Rebecca S. New Published in 2007
11
on child labour was created and % expanded over the years. It has
come to address non-industrial work by children and prohibit any
kind of. work that threatens the physical and mental growth of
children. The Minimum Age Convention (1919) lays down that
children under 14 years of age should not be employed in any
industrial undertaking other than the undertaking in which only
family members are employed. It was the first international effort to
regulate children’s participation in the work place and was followed by
numerous ILO instruments applicable to other economic sectors. The
minimum age limit was revised from time to time in subsequent
conventions taking into account the prevailing socio-economic
conditions of the membfer states. The ILO convention of 1937 (No.60)
inserted a special article for India fixing the minimum age at which
children may be employed or may work in certain occupations. It said
“children under the age of 13 years shall not be employed or allowed
to work in the transport of passengers or goods or mails by rail or in
the handling of goods of docks. Among all the conventions, a very
important one widely ratified by the member states is the ILO’s
minimum age convention 1973 (No. 138). It established the
fundamental international standard on child labour. The ultimate goal
of convention No. 138 is the total abolition of child labour. However, it
was widely recognised that this would take time. However, a growing
international consensus has emerged stressing the need to
immediately proceed with the abolition of exploitation of very young
children in slave-like and bonded conditions . This convention
obligates member states to pursue a national policy to establish that
no child can be employed in any economic sector below the age
designated for the completion of compulsory schooling and not less
than 15 years, or under special national circumstances, 14 years.
ILO made joint efforts with the Swiss and General Authorities
in the organization of a number of public events focusing on the
plight of children working under abusive conditions, and stimulating
world-wide action to bring child labour to an end. The Worst Forms of
12
23
Ibid
13
as the member states have not ratified both Conventions No. 182 and
No. 138, they must report annually on their promotional efforts in
this respect.
2.3 VIENNA DECLARATION24
Vienna Declaration and Programme of Action urges at Section II
para 47, all nations to undertake measures to the maximum extent of
their available resources, with the support of international
cooperation, to achieve the goals in the World Summit Plan of Action.
And calls on States to integrate the Convention on the Rights of the
Child into their national action plans.
Perceptions of children have evolved over time: children are now
viewed less as passive objects of adult concern and more as human
beings with rights of their own. It is of course true that concepts about
children and childhood, including what is allowed and expected of
children of different ages, maturity and gender, vary widely across and
within countries and cultures; there is no “universal” child. In
industrialized countries, for example, some teenagers are not expected
even to look after themselves, while in many poor countries, quite
young children shoulder considerable responsibility within the
household.
Over recent years, an undoubted convergence of thinking about
children, marked by the adoption in 1989 of the United Nations
Convention on the Rights of the Child (CRC), now almost universally
ratified. Amongst many other rights, it recognizes “the right of the
child to be protected Many children, in very different national
circumstances, carryout work that is entirely consistent with their
education and full physical and mental development.
Drawing on the provisions of Convention on the Rights of the
Child (CRC), Nos. (1973)138 and (1999)182, the report identifies three
categories of child labour to be abolished:
(1) Labour that is performed by a child who is under the minimum
age specified for that kind of work (as defined by national
24
ibid
14
25
ibid
15
27
“Plan of action for implementing the world Summit for children” held at United
Nations, , New York (1990)
28
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Published in 2007
23
amply provided29.
The beginning of the children rights movements can be traced
back to the mid-nineteenth century. Probably, the publication of an
article in June 1852 by Slavgvok entitled ‘The Rights of children’ is
one of the earliest efforts in this direction.
The essence of any legislation is to protect and safe guard the
interests of the vulnerable people from the onslaught of exploitation of
any form or nature. Considering that children are easily vulnerable to
exploitation through child labour and considering further that child
labour is injurious to the physical, mental, moral and social
development of children, various provisions /declaration, etc., have
been made at the national and international levels, for the welfare of
children for curbing child labour.
2.6.1 Geneva Declaration of the Rights of the Child (1924)
The Geneva Declaration on the Rights of the Child, 1924 30 is the
first convention adopted by the League of Nations in which rights to
children were considered. The Declaration of the Rights of the Child is
the name given to a series of related children's rights/ proclamations.
The first was drafted by Eglantyne Jebb and adopted by the Save the
Children International Union, Geneva, on 23 February 1923 and
endorsed by the League of Nations General Assembly on 26 November
1924 as the World Child Welfare Charter.
2.6.2 Salient features of the declaration
It is adopted on 26 September, 1924 by the League of Nations.
By the present Declaration of the Rights of the Child, commonly
known as "Declaration of Geneva," men and women of all nations,
recognizing that mankind owes to the Child the best that it has to
give, declare and accept it as their duty beyond and above all
considerations of race, nationality or creed resolved as under:
The child must be given the means requisite for its normal
29
Convention and Rights of the Child , Country Report , India February 1997, Department of Women
and Child Development, Ministry of Human Resource Development , Govt. of India , New Delhi ,
1997.
30
“ The Geneva Declaration on the Rights of the Child” (1924)
25
31
The minimum Age” Agriculture Converntion, Converntion No.10 (1921)
27
32
ILO, Minimum Age Convention (No.138), Art.1(1973)
33
ILO Minimum Age Convention (No.138), 1973 Art.3
28
35
“ The Geneva Declaration on The Rights of the Child” (1924)
33
CHAPTER - III
INDIAN LEGAL FRAMEWORK ON CHILD LABOUR
3.1 INTRODUCTION
Our Constitution makers were wise and sagacious to provide,
that children should receive distributive justice in free India. The
rights against exploitation were mentioned in the draft proposed by
Dr. B.R. Ambedkar, K.M. Munshi and K.T. Shah. While Dr.
Ambedkar’s draft simply provided that subjecting a person to forced
labour or involuntary servitude would be an offence, K.M. Munshi’s
draft article suggested for abolition of all forms of slavery, child
labour, traffic in human beings and compulsory labour36.
37
Article 21A inserted by the Constitution ( Eighty Sixth Amendment) Act, 2002 ,Sec.,2
35
provisions have been made to ensure the welfare of the child granting
them special protection over the others.
The Fundamental Rights and the Directive Principles of State
Policy have assured and ensured justice and dignity of all the
individuals. But looking at the problem of child labour it is felt that
the framers of the constitution should have given special attention to
this problem of child labour. The employment of children in organized
sector is been regulated to some extentbut, the evil thrives in the rural
areas and predominantly in the domestic sector in the urban area
which is the unorganized sector where the girl child labour is used
extensively, needs to be regulated and protected by providing social
security. The framers of the Constitution have taken a very casual and
general approach towards this group of population and the child finds
its place incidentally or consequentially in the Constitution. The
Constitution vows through conscious makers elaborate provisions
towards giving protection to the children, their welfare and
developmental rights. But it is observed that the constitution has
failed to recognize the rights of the child. The provisions seem to be
more welfare oriented than toward protection of rights of the children.
It is our duty that we pledge to recognize the rights of the child and
pay special attention to the girl child and give them their due share in
the society. Giving those opportunities, expression and dignity of life
will ensure the preambles commitment to secure justice, liberty,
equality and fraternity even to the girl child. It is unfortunate that
sufficient attention was not given over the future citizens of the
country in the constituent assembly deliberations. Also the general
reference as “citizens” does not attract the attention towards the
weakest section of the society. The children as a class constitute the
weakest section of the society and unfortunately not sufficient
attention was given to these future citizens of the country.
Neither the special care and protection nor security and
attention were given to the girl child by treating them as a special
class which needed special treatment even during the
36
relevant to the situations that would arise in the country during its
governance. Hence the word ‘socialist’ indicates the incorporation of
the philosophy of ‘socialism’ in the constitution which aims at
eliminating inequality of income and status. It also aims at providing a
decent living with dignity of life. It also has the object that to achieve
economic equality by providing State ownership of industry. The aims
and objects of our Constitution are to secure justice, liberty, equality
and fraternity to all its citizenswhich include children. But some
where it is felt that the framers of the Constitution have overlooked a
few important words which are felt necessary in today’s modern
society. There should have been mention of social security to the
weaker sections of the society and special provisions relating to girl
child and girl child labour should have been the priority of law makers
either in the Fundamental Rights chapter or in the Directive Principles
of State Policies. The child under the Constitution has not been
defined. The age of employment is also only for the hazardous
employment. The areas that are covered by the Constitution are
mainly for industrial work. The Constitution has covered the immoral
traffic of child, slavery, forced labour and bonded labour through its
articles 23 and 24. The Directive Principles of State Policy directs
through its articles to provide sufficient means of livelihood, similar
pay for similar work, just and humane conditions of work etc. But
they are not sufficient to either curb or abolish the girl child labour.
They are also not adequate to regulate and prohibit the girl child
labour. The Articles of the Constitution are incorporated for the
purpose of the safety of the life of children, since it is thought that
they are the assets of the country. But the insufficient provisions in
the constitution will be of very less help to achieve this goal. The
Directives are insufficient in protecting the girl child to whom utmost
priority must be given. The object of the Constitution is to ensure that
childhood and child labour is not abused. It also should also be
strived to ensure that the immature age of children should not be
abused and forced by economic necessity to enter in avocations that
38
40
55.Bombay, LR 323
41
AIR 1956 SC 108
40
49
AIR, 2006 SC 1806
50
AIR 1992 SC 573
51
(1993) Supp 4 SCC 100
52
AIR 1995 SC 1811
42
54
AIR, 1984 SC 82
45
make obey of such laws. But it can be seen that the States have a very
casual approach towards Article 39 for the fulfillment of the
Constitutional obligation for the welfare of children. No State have yet
made efforts towards enacting beneficial statutes to be brought into
force and administered without delay. In M.C. Mehta v State of Tamil
Nadu55, it was held that in view of Article 39 employing children inside
the match factories was violative of the article as the manufacturing
process of matches and fireworks is hazardous. Children can however,
be employed in the process of packing away from the vicinity of the
factory so that accidents by way of exposure can be avoided. The apex
court has issued directions for setting up of Child Labour
Rehabilitation Welfare Fund. Liability on the employer was cast upon
to ensure job to an adult member in the child worker’s family. The
apex court also observed that it is herculean task to eradicate the
menace of the child labour in hazardous industry, it is required to be
dealt with by an iron hand and children are to be protected under the
constitutional provisions. The Supreme court in SheelaBarse v Union
of India56, held that Article 39 (f) of the Constitution provides that the
state shall make efforts towards ensuring the Constitutional
commitment of giving opportunities to the children to develop in a
sound manner and in situations of freedom and dignity. The Supreme
Court further stated that though various have enacted Children Act
for the fulfillment of constitutional obligation for welfare of children
under Article 39 (f), yet it is directed that such beneficial statutes
should be brought into force and administered without delay.
Similarly the provisions of Article 41 requires, that the State to
provide within the limits of its economic ability and advancement,
make operative provisions for securing, the right to education and
public aid in cases of underemployment, unemployment and in times
of undeserved deficit. The effective implementation of this provision is
also expected to promote the welfare of the children proportionately
55
AIR 1997 SC 699
56
AIR 1986 SC 1773
46
57
AIR 1955, SC 33
47
makers on child labour. The issue of girl child labour as domestic help
should be highlighted so that the services given by them could be
recognized and their rights could be secured and she could be
provided social security through special laws. It has been observed
that National Commissions are also working on the general rights of
child labour. It is the need of the hour that we must be more
thoughtful about the girl child in general and the girl child labour and
the girl child as domestic help specifically.
The National Commission should hold special commission for
problems related to the girl child labour as domestic help. The nature
of their work, their conditions of work, their place of work, their terms
and conditions of work, their relations with their job provider etc.
should be studied and proper and effective legislations should be for
them. Their needs must be taken into consideration so that laws are
formulated for their benefits. The state has now to take initiative to
give true meaning to the Directive Principles along with the
fundamental Rights. The law makers have to take up the challenge of
reading between the lines of those relevant Articles and make laws
which will be beneficial for the weaker sections of the society. It is the
duty of the Parliament to define the words ‘weaker section of the
people’ and make appropriate laws. The Articles in chapter III & IV
can be given a new meaning and interpretation. In fact they must be
interpreted with the changing needs of the society and accordingly
laws should be made so that they can be beneficial for maximum
number of people.
Child labour is a pernicious practice, a denial of the joy of
childhood and access to social opportunities like education, play
which eventually impairs the personality and creativity of children, the
evolution and growth of a full being within the broad ambit of child
labour, the plight and predicament of children (irrespective of whether
they are working at home or outside) is worse (Government of India,
1988). These children are the most deprived section of population to
enter labour market at tender age to earn a pittance or to contribute
49
social values through the methods for innovation which would decide
the future of the nation. The aim of every nation should be to achieve
Human development linked with Human Rights for which education is
the most effective tool which would lead any nation towards
empowerment and Human Development. They by virtue of being
humans have inherent, inalienable and basic rights which are termed
as human rights. These rights are possessed by them because every
human being has an existence and an entity of its own.
These basic rights are operative as soon as we are born. Human
Rights cannot be alienated on the basis of caste, creed, religion, sex
and nationality. These rights are vital as they help achieve them
freedom and dignity which are necessary for their mental, physical,
moral, social and spiritual welfare. They are necessary because they
provide appropriate conditions for the moral development of every
person. Human Rights are significant because they are those
fundamental rights which a human being possesses the moment he
comes into existence in the womb of the mother. Thus it can be said
that the rights which a person has by virtue of his being human are
human rights. They are based on basic human needs. They are
characteristically important for human physical existence and health.
These rights are associated with the traditional concept of natural
law.59
3.5 HUMAN RIGHTS
It is indeed very difficult to define Human Rights yet; there are a
few definitions to explain the meaning of Human Rights. The
traditional view is limited to civil and political rights. The right to life,
liberty and security are included in them. The human Rights are
based on the dignity and respect for life of all human beings. They
also ensure freedom from fear and wants. Human Rights are those
rights which are essential for the survival, development and wellbeing
of every man, woman and children. It can be said that human rights
59
Agarwal H.O., 2004, Human Rights, central law publications, Concept of human
rights, pg. 3.
51
60
Dr. H.O Agarwal,2004, Human Rights pg 3.
53
social contract. He began with the State of Nature wherein a man was
free and independent in all respects and from this state of nature
emerged a political society due to separate Act of individuals, whereby
they undertook with one other to set up a government which would be
responsible for promotion of their common interests. 61 The social
contract theory was another cause which survived the conception of
human The expression ‘fundamental rights of man’ was stated in the
declarations and constitutional instruments of many states. Since the
beginning of the 19th century it was recognized by the constitutional
law of many States that human beings possess certain rights. Worth
of the human personality began to be realized. Although the
expression “human rights” emerged after Second World War in
International Charters and Convention, its concept is as old as the
ancient doctrine of “natural rights” founded on natural law. As early
as when man became civilized life it was realized and asserted there
were rights such as right to personal liberty, security, and property.
These rights were superior to those rights which were created by the
authority.
3.7 PRE-INDEPENDENCE APPROACH
The social awareness against the evil effects of child labour was
created during the industrial revolution in England. The social evils of
the child labour became evident not only in England but also in other
countries like France, Germany and Belgium and even in the U.S.A
during the early days of industrialization and by progressive labour
legislation the evils of child labour were sought to be combated in
those countries. During the first half of the twentieth century huge
network of labour commissions and, prior to that, factory
commissions were set up to go into the conditions of work and the
environment at the work place. In the west, the concern of child
labour was confined to children working in factory and related sector.
Naturally, when British rulers also took up the problem in India, they
61
Tondon&Anand, 2012, International Law and Human Rights, Introduction to Human
Rights, Delhi Publishing House, Hauz Khas, New Delhi. 3rd Ed, p.5
54
interval of half an hour was provided. This Act also prohibited the
employment of women and young persons under the age of 18 years
in certain land processes.
3.7.5 Children (Pledging of Labour) Act, 1933
The children (Pledging of Labour) Act, 1933 came into being to
prohibit the pledging of labour of children. The main objective of this
Act was to prevent pledging of the labour of a child, make such
agreements void and stop exploitation of children. Through this
legislation it was also attempted to eliminate this evils arising out of
pledging of the labour of young children by their parents or guardians
for taking of loans or advance. The important provisions of this bare
Act are as follows:
1. Under this Act a person below the age of 15 years is treated as a
child.
2. Penalty has been provided under the Act up to Rs. 50 for
pledging/ making agreement to pledge the labour of a child by the
parents or guardians.
3. The Act has provided that the opposite party or the employer of
the child whose labour has been pledged is to be fined by an
amount up to Rs. 200 for the breach of the law (Government of
India, 1933).
3.7.6 The Mines (Amendment) Act, 1935
This Act prohibited the employment of children in the mines
who were below 15 years of age. On the production of certificate of
physical fitness granted by a qualified medical practitioner, person
between 15 to 17 years were permitted to work underground. Working
period was restricted to a maximum of 10 hours a day and 54 hours a
week for work above the ground and 9 hours a day for underground
work.
3.7.7 Employment of Children Act, 1938
In consonance with the recommendations made by The Twenty
Third Session of the International Labour Conference held in 1937,
India passed the Employment of Children Act, 1938. This Act prohibits
56
Article 47
“State shall regard the raising of the level of nutrition and the
standards of living of its people and the improvement of public
health are among its primary duties and, in particular, the state
shall endeavour to bring about prohibition of the consumption
except from medical purposes of intoxicating drinks and of
drugs which are injurious to health”.
Article 51-A (k)
“Fundamental duty of parents or guardian is to provide
opportunities for education of children between the age of six
and fourteen years”
3.9 LEGISLATIVE ENACTMENTS
3.9.1 The Factories Act, 1948
The Factories Act, 1948, prohibited the employment of children
below 14 years in any factory. Under section (71) there is a provision
of working hours of children
1) No child shall be employed or permitted to work, in any factory
(a) for more than four and a half hours in any day;
(b) during the night
2) No female child shall be required or allowed to work in any
factory except between 8 a.m. to 7 p.m. (Government of India,
1948).
3.9.2 The Minimum Wages Act, 1948
This Act makes provisions for fixation of minimum rates of
wages in certain employment which have been specified by
appropriate government in the schedule of the act. The Act maintains
some expressions of adult, adolescent and child as in case of Factories
Act, 1948. The Act does not make any specific provisions except that it
says that different minimum rates of wages should be fixed for adult
adolescent and children (Section 3). Rule 24 of the Minimum Wages
(Central) Rules, 1950 provides that in case of a child the number of
hours in a normal working day shall be 4.5. Thus, it can be concluded
that the Minimum Wages Act provides for a work day of 4.5 hours and
59
CHAPTER IV
STEPS TAKEN BY GOVERNMENT OF INDIA IN
ABOLITION OF CHILD LABOUR
62
NCEUS, 2007
72
children’s voices and views are heard in all matters and actions
which impact their lives.
The State shall ensure that service delivery and justice delivery
mechanisms and structures are participatory, responsive and
child-sensitive, thereby enhancing transparency and ensuring
public accountability. Synergistic linkages will be created with
other progressive and successful experiments to learn from best
practices across regions.
4.4.10 Coordination, Action and Monitoring
Addressing the rights and needs of children requires
programming across different sectors and integrating their impact on
the child in a synergistic way. Rights based approach to survival,
development and protection calls for conscious, convergent and
collateral linkages among different sectors and settings, with
indicators for tracking progress.
Community and local governance play a significant role in
ensuring the child’s optimum development and social integration.
Ensuring coordination among Central Government Ministries/
Departments, between Central and State Governments, between
different levels of governance and between government and civil
society is crucial for effective implementation of this Policy.
The Ministry of Women and Child Development (MWCD) will be
the nodal Ministry for overseeing and coordinating the
implementation of this Policy. A National Coordination and Action
Group (NCAG) for Children under the Minister in charge of the
Ministry of Women and Child Development will monitor the progress
with other concerned Ministries as its members. Similar Coordination
and Actions Groups will be formed at the State and District level.
The Ministry of Women and Child Development, in consultation
with all related Ministries and Departments, will formulate a National
Plan of Action for Children. Similar Plans at the State, District and
local level will be formulated to ensure action on the provisions of this
Policy. The National, State and District Coordination and Action
84
and provide children with the necessary care and medication to fight
the infection, etc.
The second aspect of child survival is maternal health. In order
to insure the healthy growth and delivery of children it is vital to look
at the health of the mothers. The plan outlines initiatives to improve
anaemia in mothers and girls, generate awareness about maternal
health practices and child spacing, prevent and treat sexually
transmitted diseases and infections, and ensure the health centres are
full equipped to handle the needs of mothers and offer appropriate
referrals.
The third aspect of child survival is nutrition. The plan aims at
reaching optimal infant and child nutrition by promoting breast
feeding and prohibiting milk substitutes for infants, conducting
constant screening of children to ensure they are not underweight,
empower families with information about child nutrition, provide
anganwadi workers with training to address basic child diseases such
as diarrhoea, make low cost complementary food products, etc. It is
also important to address anaemia and vitamin A deficiency, address
macro and micro malnutrition through ICDS, Mid-day Meal, Public
distribution systems and such programmes. Lastly a vital aspect to
child survival is access to clear water and sanitation. Special attention
is required for girl population and their access to drinking water,
toilets, in rural areas and urban slums. In order to provide enough
water for all there is need to begin water conversation practises such
as rain water harvesting, reclining and reusing of water.
Child Development begins with early childhood care and
education. This section discusses the expansion of ICDS so it's
available to all, development of pre-school centers and creches,
promoting community based initiatives, and creating awareness
regarding birth registration and good parenting skills. The next
section aims at equality and special opportunities for the girl child,
survival, development and protection, elimination of sex selection and
child marriage, protection against sexual and non-sexual abuse,
92
CHAPTER-V
JUDICIAL TRENDS IN ABOLITION OF CHILD LABOUR
5.1 INTRODUCTION
The judges of the different courts are also worried about the low rate
of conviction. There are number of judgements given by the various
judges which shows the Judiciary is actively involved in the
implementation of the Laws by giving various directive to the
Government for necessary action for implementing the laws. In the
case of State v Nayan Ahmad63, Delhi high court has passed the
judgment on 2 July, 2012.
In the instant case, a girl namely Reshma, who was aged about ten
years at the time when the inspection was carried out. On complaint
of President, Scientific Welfare Society, New Delhi, a joint
operation/inspection was conducted on 24.11.2009 at House of
Mr.Nayan where she resides alongwith her family and a girl child,
Reshma age 10years found to have been working as domestic help for
the last 01 years and was immediately rescued from the said house.
The said child requested the Committee to send her back to her aunty
(Nayan) where she was living as she was missing her. It seems that
said child was happy here. She was neither like a servant nor bonded
labour. The Hon Judge has commented that, “The Government
machinery do not have sufficient funds and moreover no attention
towards such type of people. Laws have been made and enforced, but
without infrastructure and proper planning.” Reshma was staying
with the consent of her grandmother Smt. Tara Bai. Since she had
been abandoned by her father and her mother was of an unsound
mind, her grandmother thought it would be in the best interest for the
granddaughter's future, if she be handed over to the Nayans family
She was directed to be sent to Nayan’s place.
63
CRL.REV. No. 454/2011, see also http://indiankanoon.org/doc/17007217/ retrieved on Sept. 16.
2016
97
64
http://indiankanoon.org/doc/120485358/ accessed on 30.6.16
98
65
Writ Petition (C) No.51 of 2006
66
ILR (1997) Kar.2269
67
AIR 1997 SC 699
99
69
1984 (3) SCC-538
101
seen. They have helped in implementing the laws in the country. But
in a few cases it can be seen that the technicalities supersede the
spirit of law and justice.
On its part, the Indian Judiciary had also contributed its part
towards furthering the cause of children. A few judgments of
importance are furnished hereunder:
The Supreme Court held that though the Employment of
Children Act, 1938 did not include the construction work on projects
because the construction industry was not a process specified in the
Schedule to the Act, yet, such construction was a hazardous
occupation and under Art.24 children under 14 could not be
employed in a hazardous occupation. The right of a child against
exploitation under Art.24 was enforceable even in the absence of
implementing legislation, and in a ‘public interest’ proceeding. Thus
Supreme Court widened the scope of hazardous activities. 70
The Supreme Court directed that children should not be
employed in hazardous jobs in factories for manufacture of match
boxes and fireworks, and positive steps should be taken for the
welfare of such children as well as for improving the quality of their
life.71
The Supreme Court directed that the employers of children
below 14 years must comply with the provisions of the Child Labour
(Prohibition and Regulation) Act providing for compensation,
employment of their parents / guardians and their education. This
stand was reiterated in Bhandhua Mukti Morcha v Union of India72
The case law referred to in M.C.Mehta v State of Tamil Nadu and
others73 is of extreme importance and having greater impact on child
labour cases being dealt and to be dealt by the various courts in
India, as the ruling of the Hon’ble Supreme Court has become a law of
the land and lead to the creation of Child Labour Rehabilitation -
70
AIR 1982 SC 1473
71
(1991) 1 SCC 283
72
AIR 1997 SC 2218
73
(1996) 6 SCC 756
102
Unemployment;
Absence of schemes for family allowance;
Migration to urban areas;
Large families;
Children being cheaply available;
Non-existence of provisions for compulsory education;
Illiteracy and ignorance of parents; and
Traditional attitudes.
The Hon’ble Supreme Court has further opined that the poverty
is basic reason, which compels parents of a child, despite their
unwillingness, to get it employed. Otherwise, no parents, specially no
mother, would like that a tender aged child should toil in a factory in
a difficult condition, instead of it enjoying its childhood at home
under the parental gaze.
While dealing further with the problem, the Hon’ble Supreme
Court has come out that the offending employer must be asked to pay
compensation for every child employed in contravention of the
provisions of the Act (1986) a sum of Rs.20,000/- by the Inspectors
appointed under Section 17 of the Act and the sum could be
deposited in a fund to be known as Child Labour Rehabilitation -cum-
Welfare Fund and to have such a fund district wise or area wise and
the fund so generated shall form corpus whose income shall be used
only for the concerned child. To generate greater income, fund can be
deposited in high yielding scheme of any nationalized bank or other
public body.
The Hon’ble Supreme Court has also issued directions to the
concerned states in Para 31 of the judgment.
While disposing the Writ Petition, the Hon’ble Supreme Court
has stated “ We part with the fond hope that the closing years of the
twentieth century would see us keeping the promise made to our
children by our constitution about a half-century ago. Let the child of
twenty-first century find himself into that “heaven of freedom” of
105
74
AIR 1997 SC 699
75
AIR 1997 SC 3021
76
(1999) 8 SCC 591
77
AIR 1984 SC 469
78
AIR 1984 SC 469]
106
79
2007 KAR 2832, 2007 (5)
80
1984 (3) SCC,538
107
81
1993 Lab IC 1710 (P&H)
82
2006 (1) KarLJ 365
83
Writ Appeal against the order Dt.11.11.2005 passed by the learned Single Judge of
the Court in Writ Petition No.20439/2005 (L-WC) - Hayat Khan S/o Mahaboob Khan Shivalli
v. The Deputy Labour Commissioner, The Labour Inspector and The Village Accountant.
84
http://indiankanoon.org/doc/418234/
108
85
Criminal Misc. Writ Petition No.15630 of 2006, High Court of Judicature at
Allahabad Vishnu Dayal Sarma v. State of Uttar Pradesh and Others
110
86
WP (C) No.9767/2009 on the file of Hon’ble High Court of Delhi Court on its Own
Motion Petitioner v. Govt.of NCT of Delhi WP (CRL) 2069/2005 SAVE THE CHILDHOOD
FOUNDATION v. Union of India & Others. WP (C) 4125/2007 All India Bhrashtachar
Virodhi Morcha v. Karol Bagh Bangiya Swaran Shilpi Samiti
111
CHAPTER -VI
CONCLUSION AND SUGGESTIONS
6.1 CONCLUSION
Children constitute the nation’s valuable human resources. The
future well being of the nation depends on how its children grow and
develop. The great poet Milton said “Child Shows the man as morning
shows the day”. So it is the duty of the society to look after every child
with a view to assuring full development of its personality. Children
are the future custodians and torch bearers of the Society, they are
the messengers of our knowledge, cultural heritage, ideologies and
philosophies. Children are really future components in the form of
great teachers, scientists, judges, rulers, doctors, planners, engineers,
politicians on whom the entire society founded (rests). Unfortunately
millions of children are deprived of their childhood and right to
education and there by they are subjected to exploitation and abuse.
The age of the child has been differently defined in different
laws. There is no definite criteria or scientific parameters in defining
the age of the child. The Constitution of India under Art.24 defines
‘Child’ as any one below the age of 14 years and who shall not be
employed to work in any factory or mine or engaged in any other
hazardous employment. Under Child Labour (Prohibition and
Regulation) Act, 1986 ‘Child’ means a person who has not completed
his 14 years of age. Article 21-A of the Constitution states that the
state shall provide free and compulsory education to all children of
the age of six to fourteen years in such manner as the State may by
law determine. Now, amended Article 45 of the Constitution states
that, the state shall endeavor to provide early childhood care and
education for all children until they complete the age of six years. But
according to Art.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. Under Juvenile Justice (Care and Protection of
113
LIST OF CASES
(A)
A. Srirama Babu v The Chief Secretary of Labour Department and
the Labour Commissioner AIR 1997 SC 699
(B)
B.M.M. v Union of India AIR, 1984 SC 82
Bachpan Bachao Andolan v Union of India & Others Writ Petition
(C) No.51 of 2006
Bandhua Mukti Morcha v Union of India AIR 1984 SC 802
Bandhua Mukti v Union of India 3 SCC 161: AIR 1984 SC 802, 812
BandhuaMuktiMorcha v Union of India AIR 1984, SC 802
Bhandhua Mukti Morcha v Union of India (1997) 10 SCC 549; AIR
1997 SC 2218
Bijay Cotton Mills Ltd. v State of Ajmer AIR 1955, SC 33
(C)
Calcutta Electricity Supply Corporation v Subash Chandra Bose
AIR 1992 SC 573
(D)
Dattatraya MotiRam v State of Bombay 55.Bombay, LR 323
(H)
Hayath Khan v The Deputy Labour Commissioner and Others 2007
KAR 2832, 2007 (5)
Horticulture Employees Union v Delhi Administration AIR 1992,
SC 789
(I)
Indra Sawhney v Union of India 1992 supp (3) SCC 271: AIR 1993
SC 477
Indra Sawhney v Union of India 1992 supp (3) SCC 271: AIR 1993
SC 477
(K)
123
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