Mehta Vs. State of Tamil Nadu & Ors  INSC 1579 (10 December 1996)
Singh, B.L. Hansaria, S.B. Majmudar Hansaria, J.
am the child.
the world waits for my coming.
the earth watches with interest to see what I shall become. Civilization hangs
in the balance, For what I am, the world of tomorrow will be.
hold in your hand my destiny.
determine, largely, whether I shall succeed or fail, Give me, I pray you, these
things that make for happiness. Train me, I beg you, that I may be a blessing
to the world".
Gene Cole It may be that the aforesaid appeal lies at the back of the saying
that "child is the father of man". To enable fathering of a valiant
and vibrant man, the child must be groomed well in the formative years of his
life. He must receive education, acquire knowledge of man and materials and
blossom in such an atmosphere that on reaching age, he is found to be a man
with a mission, a man who matters so for as the society is concerned.
Constitution makers, wise and sagacious as they were, had known that India of their vision would not be a
reality if the children of the country are not nurtured and educated. For this,
their exploitation by different profit makers for their personal gain had to be
first indicted. It is this need, which has found manifestation in Article 24,
which is one of the two provisions in Part IV of our Constitution on the
fundamental right against exploitation.
farmers were aware that this prohibition alone would not permit the child to
contribute its mite to the nation building work unless it receives at least
45 was therefore inserted in our paramount parchment casting a duty on the
state to endeavour to provide free and compulsory education to children. (It is
known that his provision in Part V of our Constitution is, after the decision
by a Constitution Bench of this Court in Unni Krishnan, 1993-1 SCC 645, has
acquired the status of a fundamental right). Our Constitution contains some
other provisions also to which we shall advert later, desiring that a child
must be given opportunity and facility to develop in a healthy manner.
Despite the above, the stark reality is that in our country like many others,
children are exploited lot. Child labour is a big problem and has remained
intractable, even after about 50 years of our having become independent,
despite various legislative enactments, to which we shall refer in detail
subsequently, prohibiting employment of a child in a number of occupations and
our country, Sivakasi was one taken as the worst offender in the matter of
violating prohibition f employing child labour. As the situation thee had
became intolerable, the public spirited lawyer, Shri MC Mehta, thought it
necessary to invoke this court's power under Article 32, as after all the
fundamental right of the children guaranteed by Article 24 was being grossly
violated. He, therefore, filed this petition. It once come to be disposed of by
an order of October 31, 1990 by nothing that in Sivakasi, as on December 31,
1985, there were 221 registered match factories employing 27,338 workmen of
whom 2941 were children. The Court then noted that the manufacturing process of
matches and fireworks (for the manufacture of which also Sivakasi is a
traditional centre) is hazardous, giving rise to accidents including fatal
cases. So, keeping in view the provisions contained in Article 39(f) and 45 of
the Constitution, it gave certain directions as to how the quality of life of
children employed in the factories could be improved. The court also felt the
need of constituting a committee to oversee the directions given.
Subsequently, suo moto cognizance was taken in the present case itself when
news about an "unfortunate accident", in one of the Sivakasi cracker
factories was published. At the direction of the Court, Tamilnadu Government
filed a detailed counter stating, inter alia, that number of persons to die was
39. The Court gave certain directions regarding the payment of compensation and
thought that an advocates committee should visit the area and make a
comprehensive report relating to the various aspects of the matter, as
mentioned in the order of August 14, 1991.
The committee was to consist of
R.K. Jain, a senior advocate;
Ms. Indira Jaisingh, another senior advocate; and
KC Dua, Advocate.
committee has done a commendable job. It submitted its report on 11.11.91
containing many recommendations, the summer of which is to be found at pages
24-25 of the report, reading as below:-
State of Tamilnadu should be directed to ensure that
children are not employed in fire works factories.
The children employed in the match factories for packing purposes must work in
a separate premises for packing.
Employers should not be permitted to take work from the children for more than
six hours a day.
Proper transport facilities should be provided by the employers and State Govt.
for travelling of the children from their homes to their work places and back.
Facilities for recreation, socialisation and education should be provided
either in the factory or close to the factory.
Employers should make arrangements for providing basic diets for the children and
in case they fail to do so, the Government may be directed to provide for basic
diet - one meal a day programme of the State of Tamilnadu for school children may be extended to the child worker.
Piece-rate wages should be abolished and payment should be made on monthly
basis. Wages should be commensurate to the work done by the children.
All the workers working in the industry, whether in registered factories or in
unregistered factories, whether in cottage industry or on contract basis,
should be brought under the Insurance Scheme.
Welfare Fund - For Sivakasi area, instead of present committee, a committee
should be headed by a retired High Court Judge or a person of equal status with
two social workers, who should be answerable either to this Hon'ble Court or to the High Court as may be
directed by this Hon'ble
should be directed to deposit Rs.2/- per month per worker towards welfare fund
and the State should be directed to give the matching contribution. The
employers of all the industries, whether it is registered or unregistered,
whether it is cottage industry or on contract basis, to deposit Rs.2/- per
month per worker.
National Commission for children's welfare should be set up to prepare a scheme
for child labour abolition in a phased manner. Such a Commission should be
answerable to this Hon'ble
Court directly and
should report to this Hon'ble
Court at periodical
intervals about the progress.
put on record our appreciation for the commendable work done by the committee.
There is an affidavit of the president of the All India Chamber of Match
Industries, Sivakasi, on record which contains its reaction to the
recommendations of Committee.
not necessary to deal with this affidavit. Objection to the Committee's
recommendations was also filed by the President of Tamilnadu Fireworks and Amorces
Manufactures Association. We do not propose to traverse this affidavit as well.
Both of these contain general statements and denial of what was found by the Committee.
the sake of completeness, it may be stated that there are on record various
report relating to working conditions etc. of child labour at Sivakasi. First
of these reports is of a Committee which had been constituted by the Labour
Department by the Tamilnadu Government vide its GO MS. dated 19.3.34, under the
Chairmanship of Thiru N Haribhaskar. The report of the Committee is voluminous,
as it runs into 181 pages and contains a number of annexures.
Committee reviewed the working conditions and measures taken to mitigate the
sufferings of the child labour and has made various recommendations in Chapter
XI of its report. We also have a work of collector of Kamarajar District titled
"Integrated Project for the Betterment of Living Conditions of Women and
Children Employed in Match Factories in Sivakasi area." This work is of
October 1985. There is yet another report dealing with the causes and
circumstances of the fire explosions which had taken place on 12.7.91 at Dawn Amorces
Fireworks Industries and it contains remedial measures. The final report
relating to Sivakasi workers is of 30th March, 1993 this relates to elimination of
child labour in the match and firework industries in Tamilnadu.
representatives of the Department of Labour & Employment, Social Welfare ad
Education had prepared this report in collaboration with UNICEF and it speaks
of "A proposed strategy framework."
Government of India as well has been apprising itself
about the various aspects relating to child labour in various industries. A 16
member committee had come to be set up by a resolution of the Labour Ministry
dated 6/7 February, 1979 under the chairmanship of Shri M.S. Gurupadaswamy. The
Committee submitted its report on 29.12.79 and made various recommendations
which are contained in Chapter V The Labour Ministry, had subsequently surveyed
the problem of child labour departmentally, as a part of the observance of
International Child Year Programme. The report (dated 24.6.81) mentions about
the survey conducted in certain organised and unorganised sector of industries.
It contains an account of employment, wages and earnings, working conditions
and welfare activities relating to child labour both in organised and unorganised
sectors. Chapter III of the report contains the conclusions, of which what has
been stated in para 4.5 deserves to be noted. The same is as below:- Extreme
poverty, lack of opportunity for gainful employment and intermittancy of income
and low standards of living are the man reasons for the wide prevalence of
child labour. Though it is possible to identify child labour in the organised
sector, which form a minuscule of the total child labour, the problem relates
mainly to the unorganised sector where utmost attention needs to be paid.
problem is universal but in our case it is more crucial.
of the problem.
has ceased to be the only centre employing child labour. The malady is no
longer confined to that place.
write-up in Indian Express of 25.10.1996 has described Bhavnagar as another Sivaskasi
in making, as that town of about 4 lakh population has a t least 13,000
children employed in 300 different industries. The problem of child labour in India has indeed spread it fang far and
wide. This would be apparent from the chart which finds place in the
commendable work of a social anthropologist of United Nations Volunteer, Neera Burra,
published under the title "Born to Work : Child Labour in India", as
at pages XXII to XXIV of the book. It is useful to extract that chart. It is a
Industry Location Total Child Percentage o f Workers Workers Child Workers to
total workers --------------------------------------------------------------------------
- Slate pencil Mandsaur, 12,000 1000 8.3 Madhya Pradesh Slate Markapur, 15,000
app.3750 25 Andhra Pradesh Diamond-cutting Surat, Gujarat 100,000 15,000 15
Agate-cutting Cambay, Gujarat 30,000 not known - Gem Polishing Jaipur,
Rajasthan 60,000 13,600 22.6 Powerloom Bhiwandi, Maharashtra 300,000 15,000 5
Cotton hosiery Tiruppur, 30,000 8,000 33.3 Tamilnadu Carpet weaving Mirzapur-Bhadohi
200,000 150,000 75 Uttar Pradesh Carpet weaving Jammu & Kashmir app.
400,000 100,000 25 Carpet weaving Rajasthan 30,000 12000 40 Lock-making Aligarh,
80,000, 7,000 8.7 Uttar Pradesh 90,000 10,000 11.1 Pottery Khurja, 20,000 5,000
25 Uttar Pradesh Brass Ware Moradabad, 150,000 40,000, 26.6, Uttar Pradesh
45,000 30.0 Match Sivakasi, not known 45,000 - Tamilnadu Glass Firozabad,
200,000 50,000 25 Uttar Pradesh Silk and Varanasi, 11,900 4,409 37 silk
products Uttar Pradesh Textile Varanasi, 3,512 1,108 31.5 Uttar Pradesh Knives Rampur,
not known 3,000 - Uttar Pradesh Handicrafts Jammu & Kashmir 90,000 26,478
29.42 Silk weaving Bihar not known 10,000 - Brocade and Varanasi and not known
300,000 - Zari industry other centres, Uttar Pradesh Brick-kilns West Bengal
not known 35,000 - Beedi India 3,275,000 3,275,00 10 Circus industry 40 major
circuses 12% of the entire labour strength Handloom and Jammu & Kashmir
116,000 28,348 25 Handicraft Industry
(Source material ommitted)
According to the 1971 census 4.66 per cent of the child population in India
consisted of working children. In absolute numbers, the 1971 census put the
figure at 10.7 million working children. On the basis of National Sample Survey
27th round (1972-73) the number of working children as on March, 1973 in the
age group of 5-14 years' may be estimated at 16.3 million and based on the 32
round at 16.25 million on 1st March, 1978 (14.68 million rural and 1.57 million
urban). According to 1981 census the figure has gone to 11.16 million working
children. As estimated by the Planning Commission on 1st March, 1983, there
would be 15.70 million child laborers, (14.03 rural and 1.67 urban) in the age
group of 10-14 years' and 17.36 million in the age group of 5-14 years'. The
National Sample Survey Organisation estimates the number at 17.58 million in
1985. None of the official estimates included child workers in the unorganised
sector, and therefore, are obviously gross under estimates.
from various non-governmental sources as to the actual number working children
range from 44 million to 100 million.
of 1981 census have been quoted because the report relating to 1991 census has
not yet been made public.
understood that the same is under publication).
The aforesaid profile shows that child labour by now is an all-India evil,
though its acuteness differs from area to area. So, without a concerted effort,
both of the Central government and various State governments, this ignominy
would not get wiped out. We have, therefore, thought it fit to travel beyond
the confines of Sivakasi to which place this petition initially related. In our
view, it would be more appropriate to deal with the issue in wider spectrum and
broader perspective taking it as a national problem and not appertaining to any
one region of the country. So, we would address ourselves as to how we can, and
are required to, tackle the problem of child labour, solution of which is
necessary to build a better India.
accomplish the aforesaid task, we have first to note the constitutional mandate
and call on the subject, which are contained in the following articles:
Prohibition of employment of children in factories, etc.- No child below the
age of fourteen years shall be employed to work in any factory or mine or
engaged in any other hazardous employment.
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 avocations unsuited to their age or strength:
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.
Right to work, to education and to public assistance in certain cases.- The
State shall, within the limits of its economic capacity and development, make
effective provision for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, and in
other cases of undeserved want.
Provision for free and compulsory education for children.- The State shall endeavour
to provide, within a period of ten years from the commencement of this Constitution,
for free and compulsory education for all children until they complete the age
of fourteen years.
Duty of the State to raise the level of nutrition and the standard of living
and to improve public health.- The State shall regard the raising of the level
of nutrition and the standard of living of its people and the improvement of
public health as among its primary duties and, in particular, the State shall endeavour
to bring about prohibition of the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to health."
the aforesaid provisions, the one finding place in Article 24 has been a
fundamental right ever since 28th January, 1950. Article 45 too has been raised to high pedestal by Unni Krishnan,
which was decided on 4th
February, 1993. Though
other articles are part of directive principles, there are fundamental in the
governance of our country and it is the duty of all the organs of the State (a
la Article 37) to apply these principles. Judiciary, being also one of the
three principal organs of the State, has to keep the same in mind when called
upon to decide matters of great public importance. Abolition of child labour is
definitely a matter of great public concern and significance.
would be apposite to apprise ourselves also about our commitment to world
community. For the case at hand it would be enough to note that India has accepted the Convention on the
Rights of the Child, which was concluded by the UN General Assembly on 20th November, 1989. This Convention affirms that
children's right require special protection and it aims, not only to provide
such protection, but also to ensure the continuous improvement in the situation
of children all over the world, as well as their development and education in
conditions of peace and security. Thus, the Convection not only protects the
child's civil and political right, but also extends protection to child's
economic, social, cultural and humanitarian rights.
The Government of India deposited its instrument of accession tot he
above-mentioned conventions on December 11, 1992
with the United Nation's Secretary-General. That instrument contains the
following declaration "While fully subscribing to the objectives and
purposes of the Convention, realising that certain of the rights of the child,
namely those pertaining to the economic, social and cultural rights can only be
progressively implemented in the developing countries, subject to the extent of
available resources and within the framework of international co-operation; recognising
that the child has to be protected from exploitation of all forms including
economic exploitation; nothing that for several reasons children of different
ages do work in India; having prescribed minimum ages for employment in
hazardous occupations and in certain other areas; having made regulatory
provisions regarding hours and conditions of employment; and being aware that
it is not practical immediately to prescribe minimum ages for admission to each
and every area of employment in India-the Government of India undertakes to
take measures to progressively implement the provisions of Article 32,
particularly paragraph 2(a), in accordance with its national legislation and
relevant international instruments to which it is a State Party."
Article 32 of which mention has been made in the instrument of accession reads
as below :
States Parties recognise the right of the child to be protected 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 health or
physical, mental, spiritual, moral or social development.
States Parties shall take legislative, administrative, social and educational
measures to ensure the implementation of the present article. To this end, and
having regard to the relevant provisions of other international instruments,
States Parties shall in particular :
Provide for a minimum age or minimum ages for admission to employment'
Provide for appropriate regulation of the hours and conditions of employment;
Provide for appropriate penalties or other sanctions to ensure the effective
enforcement of the present article." Statutory provisions
may now note as to how the problem of child labour has been viewed by our
policy makers and what efforts have been made to take care of this evil. We
have shown our concern in this sphere ever since the International Labour Organisation,
set up in 1919 under the League
of Nations, had felt
that there should be international guidelines by which the employment of
children under a certain age could be regulated in industrial undertakings. It,
therefore, suggested that the minimum age of work be 12 years. The same
required ratification by the Government of British India;
during the Legislative Assembly debates, the question of raising the minimum
age from 9 t 12 years had created a furore. The Hon'ble Sir Thomas Holland had
said in the Legislative Assembly in February 1921 that if the minimum age were
raise, the same would upset the organisational set- up of most textile mills
which were the principal employees of children. On the other hand, there were
those who felt that the answer tot eh problem lay in compulsory primary
education. The House ultimately was divided with 32 members voting for raising
the minimum age to 12 and 40 voting against it. The Assembly, therefore,
recommended to the Governor-General-in-Council that the Draft Convention should
be ratified with certain observation.
May it be stated that the International Labour Organisation has been playing an
important role in the process of gradual elimination of child labour and to
protect child from industrial exploitation. It has focused five main issues :-
Prohibition of children labour.
Protecting child labour at work.
Attacking the basic causes of child labour.
Helping children to adopt to future work.
Protecting the children of working parents.
now 18 Conventions and 16 recommendations have been adopted by the ILO in the
interest of working children all over the world.
continue our narration of steps taken here, a Royal Commission on Labour came
to be established in 1929 to inquire into various matters relating to labour in
this country. The report came to be finalised in 1931. It brought to light many
inequities and shocking conditions under which children worked. The Commission
had examined to conditions of child labour in different industries and had
found that children had been obliged to work any number of hours per day as
required by their masters. It was also found that they were subject to corporal
punishment. The Commission had felt great concern at the placing of children by
parents to employers in return for small sums of money; and as this system was
found to be indefensible it recommended that any bond placing a child should be
regarded as void.
The recommendations of the Commission came to be discussed in the Legislative
Assembly and the Children (Pleading of Labour) Act, 1933 came to be passed,
which may be said to be the first statutory enactment dealing with child labour.
Many statutes came to be passed thereafter. As on today, the following
legislative enactments are in force prohibiting employment of child labours in
different occupations :
Section 67 of Factories Act, 1948:
of employment of young children- No child who has not completed his fourteenth
year shall be required or allowed to work in any factory." (ii) Section 24
of Plantation Labour Act, 1951:
child who has not completed his twelfth year shall be required or allowed to
work in any plantation".
Section 109 of Merchant Shipping Act, 1951:
person under fifteen years of age shall be engaged or carried to sea to work in
any capacity in any ship, except-
a school ship, or training ship, in accordance with the prescribed conditions;
a ship in which all persons employed are members of one family; or
a home-trade ship of less than two hundred tons gross; or
such person is to be employed on nominal wages and will be in the charge of his
father or other adult near male relative."
Section 45 of Mines Act, 1952:- (i) "No child shall be employed in any mine,
nor shall any child be allowed to be present in any part of a mine which is
below ground or in any (open cast working) in which any mining operation is
being carried on.
After such date as the Central Government may, by notification in the Official
Gazette, appoint in this behalf, no child shall be allowed to be present in any
part of a mine above ground where any operation connected with or incidental to
any minining operation is being carried on."
Section 21 of Motor Transport Workers Act, 1961:- "No child shall be
required or allowed to work in any capacity in any motor transport
undertaking." (vi) Section 3 of Apprentices Act, 1961:- Qualifications for
being engaged as an apprentice:- A person shall not be qualified for being engaged
as an apprentice to undergo apprenticeship training in any designated trade,
not less than fourteen years of age, and
such standards of education and physical fitness as may be prescribed:
that different standards may be prescribed in relation to apprenticeship
training in different designated trades and for different categories of
Section 24 of Beedi and Cigar Workers (Conditions of Employment Act, 1966:-
"Prohibition of employment of children-No child shall be required or
allowed to work in any industrial premises." (viii) Child Labour
(Prohibition and Regulation) Act, 1986. (Act 61 of 1986).
Shops and Commercial Establishment Acts under different nomenclatures in
The aforesaid shows that the legislature has strongly desired prohibition of
child labour. Act 61 of 1986 is, ex facie, a bold step. The provisions of this
Act, other than Part III, came into force at once and for Part III to come into
force, a notification by the Central Government is visualised by section 1(3),
which notification covering all classes of establishments throughout the
territory of India was issued on May 26, 1993.
Section 3 of this Act has prohibited employment of children in certain
occupations and processes. Part A of the Schedule to the Act contains the names
of the occupations in which no child can be employed or permitted to work; and
in Para B names on some processes have been mentioned in which no child can be
employed or permitted to work. It would be profitable to quote Parts A and B of
the Schedule which read as below:
A Occupations Any
occupation connected with –
of passengers, goods or mails by railway;
picking, clearing of an ash pit of-building operation in the railway premises;
in a catering establishment at a railway station involving the movement of a
vendor or any other employee of the establishment from one platform to another
or into or out of a moving train;
relating to the construction of a railway station or with any other work where
such work is done in close proximity to or between the railway lines; and
port authority within the limits of any port.
manufacture, including bagging of cement.
Cloth printing, dyeing and weaving.
Manufacture of matches, explosives and fire-works.
Mica-cutting and splitting.
Building and construction industry.
Section 14 of the Act has provided for punishment upto 1 year (minimum being 3
months) or with find upto Rs.20,000/- (minimum being ten thousand) or with
both, to one who employs or permits any child to work in contravention of
provisions in section 3. Even so, it is common experience that child labour
continues to be employed. As to why this has happened despite the Act of 1986,
has come to be discussed by Neera Burra, in her afore- mentioned book at pages
246 to 230 o the 1995 edition. It has been first pointed out that the
occupations and processes dealt by the Act are same about which the replealed
statute (Employment of Children Act, 1938) had mentioned, except that in Part
B, one process has been added- the same being "building and construction
to Neera, there are a number of loopholes in the Act which has made it
"completely ineffective instrument for the removal of children working in
industry". One of the clear loopholes mentioned is that children can
continue to work if they are a part of family of labour. It is not necessary
for our purpose to go into other infirmities pointed out. Nonetheless, it
deserves to be pointed out that the Act does not use the word
"hazardous" anywhere, the implication of which is the children may
continue to work in those processes not involving chemicals. Neera has tried to
show how impracticable and unrealistic it is to draw a distinction between
hazardous and non-hazardous processes in a particular industry. The suggestion
given is that what is required is to list the whole industry as banned for
child labour, which would make the task of enforcement simpler and strategies
of evasion more difficult.
Failure : causes
have, therefore, to see as to why is it that child labour has continued despite
the aforesaid statutory enactments. This has been a subject of study by a good
number of authors. It would be enough to note what has been pointed out in
"Indian Child Labour" by Dr. J.C. Kulshreshtha. This aspect has been
dealt in Chapter II.
to the author, the causes of failure are :
wages of the adult;
of schemes for family allowance;
to urban areas;
being cheaply available;
of provisions for compulsory education;
and ignorance of parents; and
Ahmad Shah has also expressed similar views in his book "Child Labour in India". In the article at pages 65
to 68 of 1993(3) SCJ (Journal Section) titled "Causes of the exploitation
of child labour in India", Dr. Amar Singh and Raghuvinder Singh, who are
attached to Himachal Pradesh University, have taken the same views.
the aforesaid causes, it seems to us that the poverty is basic reason which
compels parents of a child, despite their unwillingness, to get it employed.
The Survey Report of the Ministry of Labour (supra) had also so stated.
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 the paternal gaze.
may be that the problem would be taken care of to some extent by insisting on
compulsory education. Indeed, Neera thinks that if there is at all a blueprint
for tackling the problem of child labour, it is education. Even if it were to
be so, the child of a poor parent would not receive education, if per force it
has to earn to make the family meet both the ends. therefore, unless the family
is assured of income allude, problem of child labour would hardly get solved;
and it is this vital question which has remained almost unattended. We are,
however, of the view that till an alternative income is assured to the family,
the question of abolition of child labour would really remain a will-o'-the
wisp. Now, if employment of child below that age of 14 is a constitutional
indication insofar as work in any factory or mine or engagement in other
hazardous work, and if it has to be seen that all children are given education
till the age of 14 years in view of this being a fundamental right now, and if
the wish embodied in Article 39(e) that the tender age of children is not
abused and citizens are not forced by economic necessity to enter avocation
unsuited to their age, and if children are to be given opportunities and
facilities to develop in a healthy manner and childhood is to be protected
against exploitation as visualised by Article 39(f), it seems to us that the
least we ought to do is see to the fulfillment of legislative intendment behind
enactment of the Child Labour (Prohibition and Regulation) Act, 1986. Taking
guidance therefrom, we are of the view that the offending employer must be
asked to pay compensation for every child employed in contravention of the
provisions of the Act a sum of Rs.20,000/-; and the Inspectors, whose
appointment is visualised by section 17 to secure compliance with the
provisions of the Act, should do this job. The inspectors appointed under
section 17 would see that for each child employed in violation of the
provisions of the Act, the concerned employer pays Rs.20,000/- which sum could
be deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare
Fund. The liability of the employer would not cease even if he would desire to
disengage the child presently employed. It would perhaps be appropriate to have
such a fund district wise or area wise.
fund so generated shall form corpus whose income shall be used only for the
concerned child. The quantum could be the income earned on the corpus deposited
qua the child. To generate greater income, fund can be deposited in high
yielding scheme of any nationalised bank or other public body.
the aforesaid income could not be enough to dissuade the parent/guardian to
seek employment of the child, the State owes a duty to come forward to
discharge its obligation in this regard. After all, the aforementioned
constitutional provisions have to be implemented by the appropriate Government,
which expression has been defined in section 2(i) of the Act to mean, in
relation to establishment under the control of the Central Government or a
railway administration or a major port of a mine or oil field, the Central
Government, and in all other cases, the State Government.
Now, strictly speaking a strong case exists to invoke the and of an Article 41
of the Constitution regarding the right to work and to give meaning to what has
been provided in Article 47 relating to raising of standard of living of the
population, and Articles 39(e) and (f) as to non-abuse of tender age of
children and giving opportunities and facilities to them to develop in healthy
manner, for asking the State to see that an adult member of the family, whose
child is in employment in a factory or a mine or in other hazardous work, gets
a job anywhere, in lieu of the child.
would also see the fulfillment of the wish contained din Article 41 after about
half a century of its being in the paramount parchment, like primary education
desired by Article 45, having been given the status of fundamental right by the
decision in Unni Krishnan. We are, however, not asking the State at this stage
to ensure alternative employment in every case covered by Article 24, as
Article 41 speaks about right to work "within the limits of the economic
capacity and development of the State". The very large number of child-labour
in the aforesaid occupations would require giving of job to very large number
of adults, if we were to ask the appropriate Government to assure alternative
employment in every case, which would strain the resources of the State, in
case it would not have been able to secure job for an adult in a private sector
establishment or, for that matter, in a public sector organisation. , we are
not issuing any direction to do so presently.
we leave the matter to be sorted out by the appropriate Government. In those
cases where it would not be possible to provide job as above-mentioned, the
appropriate Government would, as its contribution/grant, deposit in the
aforesaid Fund a sum of Rs.5,000/- for each child employed in a factory or mine
or in any other hazardous employment.
The aforesaid would either see an adult (whose name would be suggested by the
parent/guardian of the concerned child) getting a job in lieu of the child, or
deposit of a sum of Rs.25,000/- in the Child Labour Rehabilitation-cum- Welfare
Fund. In case of getting employment for an adult, the parent/guardian shall
have to see that his child is spared from the requirement to do the job, as an
alternative source of income would have become available to him.
give shape to the aforesaid directions, we require the concerned States to do
survey would be made of the aforesaid type of child labour which would be
completed within six months from today.
start with, work could be taken up regarding those employment which have been
mentioned in Article 24, which may be regarded as core sector, to determine
which the hazardous aspect of the employment would be taken as criterion. The
most hazardous employment may rank first in priority, to be followed by
comparatively less hazardous and so on. It may be mentioned here that the National
Child Labour Policy as announced by the Government of India has already
identified some industries for priority action and the industries to identified
are as below :- The match industry in Sivakasi, Tamil Nadu The diamond
polishing industry in Surat, Gujarat.
precious stone polishing industry in Jaipur, Rajasthan.
glass industry in Firozabad, Uttar Pradesh.
brass-ware industry in Mirzapur-Bhadohi, Uttar Pradesh.
lock-making industry in Aligarh, Uttar Pradesh.
state industry in Markapur, Andhra Pradesh.
slate industry in Mandsaur, Madhya Pradesh.
The employment to be given as per our direction could be dovetailed to other
assured employment. On this being done, it is apparent that our direction would
not require generation of much additional employment.
The employment so given could as well be the industry where the child is
employed, a public undertaking and would be manual in nature inasmuch as the
child in question must be engaged in doing manual work. The understanding
chosen for employment shall be one which is nearest to the place of residence
of the family.
those cases where alternative employment would not be made available as
aforesaid, the parent/guardian of the concerned child would be paid the income
which would be earned on the corpus, which would be a sum of Rs.85,000/- for
each child, every month. The employment given or payment made would cease to be
operative if the child would not be sent by the parent/guardian for education.
discontinuation of the employment of the child, his education would be assured
in suitable institution with a view to make it a better citizen. It may be
pointed out that Article 45 mandates compulsory education for all children
until they complete the age of 14 years; it is also required to be free. It
would be the duty of the Inspectors to see that this call of the Constitution
is carried out.
district could be the unit of collection so that the executive head of the
district keeps a watchful eve on the work of the Inspectors. Further, in view
of the magnitude of the task, a separate cell in the Labour Department of the
appropriate Government would be created. Monitoring of the scheme would also be
necessary and the Secretary of the Department could perhaps do this work. Overall
monitoring by the Ministry of Labour. Government of India, would be beneficial
The Secretary to the Ministry of Labour, Government of India would apprise this
Court within one year of today about the compliance of aforesaid directions. If
the petitioner would need any further of other order in the light of the
compliance report, it would be open to him to do so.
should also like to observe that on the directions given being carried out,
penal provision contained in the aforenoted 1936 Act would be used where
employment of a child labour, prohibited by the Act, would be found.
Insofar as the non-hazardous jobs are concerned, the Inspector shall have to
see that the working hours of the child are not more than four to six hours a
day and it receives education at least for two hours each day. It would also be
see that the entire cost of education is borne by the employer.
The task is big, but not as to prove either unwieldy or burdensome. The financial
implication would be such as to prove a damper, because the money after all
would be used to build up better India. In this context, it is worth pointing
out that covertly as such has not stood in the way of other developing
countries from taking care of child labour. It has been pointed out by Myron
Weiner (at page 4 of 1991 Edition) of his book "The Child and the State in
India" that India is a significant exception to the global trend toward
the removal of children from the labour force and the establishment of
compulsory, universal primary school education, as many countries of Africa
like Zambia, Ghana, Ivory Coast, Libya, Zambia, Zimbabwe, with income levels
lower than India, have done better in these matters. This shows that has caused
the problem of child labour to persist here is really not dearth of resources,
but lack of real zeal. Let this not continue, Let us all put our head and
efforts together and assist the child for its good and greater good of the
The writ petition is disposed of accordingly.
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 which our poet laureate Rabindranath Tagore
has spoken in Gitanjali.
Let a copy of this judgment is to be sent to Chief Secretaries of all the State
Governments and union Territories; so also to the Secretary, Ministry of Labour,
Government of India for their information and doing the needful.