Bandhua
Mukti Morcha Vs. Union of India & Ors [1997] INSC 208 (21 February 1997)
K.
RAMASWAMY, S. SAGHIRAHMAD
ACT:
HEAD NOTE:
O R D
E R
This writ petitionunder Article 32 of theConstitution has been filedby way
of public interest litigation seeking issue of a writof mandamus directing the
Government totake steps to stop employment of children in Carpet Industry in
the State of Utter Pradesh; to appoint a Committee to investigate into theirconditions
ofemployment; and to issue such welfare directivesas are appropriate for total
prohibition onemployment of childrenbelow 14 years and directing therespondent togive
them facilitieslike education, health, sanitation, nutritious food,etc.
The
main contention of the petitioner-group isthat employment of the children in
any industry or in a hazardous industry, is violative of Article 24 ofthe
Constitution and derogatory to the mandates contained in Article 39(e) and (f) ofthe
Constitution read with the Preamble. Pursuant to the filing of the writ
petition, thisCourt appointedPrem Bhai and otherto visit factories
manufacturing carpets and to submit their findings asto whether any number of
children below the age of 14 years are working in the carpet industry etc. The
Commissioner submitted his preliminary report.Subsequently, by Order dated August 1, 1991,this Court appointed a Committeeconsisting
of ShriJ.P. Vergese, Ms. Gyansudha Mishra and Dr. K.P. Rajuto go around Mirzapur
area and other places where carbets are being weaved to findout whether
children are being exploited and to submit a comprehensive report. In
furtherance thereof, a comprehensive report was submitted on November 18, 1991. The matter was heard and argumentswere
concluded.The judgment was reserved by proceedings dated October 18, 1994. Since the judgment could not be
delivered, matter was directed to be posted before a Bench consisting of S. Saghir
Ahmad, J.
We haveheard
the counsel on both sides.
The
primary contention by the petitioneron behalf of the children below the age of
14 years, is that the employment of children by various carpet weaverin Varanasi, Mirzapur, Jaunpur and Allahabadarea
isviolative of Article
24.
The reportof theCommittee discloses the enormity of the problem of exploitation
to which the children are subjected. Children ranging between 5to 12 years
having been kidnappedfrom the Village Chhichhori (Patna Block, District Palamau
in Bihar) in January and February, 1984 in
three batches and weretaken to village Bilwari in Mirzapur District of U.P. for
beingengaged in carpet weaving centres. They are forced to work allthe day.
Virtually, they are beingtreated as slaves and are subjected to physical
torture revealed bythe presence of marks of violence on their person. TheCommission/Committee
visited 42 villages and foundin all 884 looms engaging 42% of the work force
with the children below theage of 14 years. The total number of children are
369; 95% of them are of tender age ranging between 6 to 11 years and most of
them belong to the Scheduled Castes and Scheduled Tribes. Despite Pursuation,
they couldnot be released andcontinue to languish under bondage. TheCommission
visited several villages, personally contactedthe parents ofthe children in
different places and foundthat the children were taken againsttheir wishes and
are wrongfully forced to work as bonded labour in the carpet industries. They
have furnished the list of carpet industrieswhereat the childrenwere found engaged.The
question, therefore, is:whether the employment of the children below theage
of14 years is violative of Article 24and whether theomission on thepart of the
State toprovidewelfarefacilities and opportunities deprives them of the
constitutional mandatescontained in Articles 45, 39(e) and (f), 21,14 etc.?
Child of today cannot develop tobe a responsible and productive member of
tomorrow's society unless an environment which is conductive to his socialand
physical healthis assured to him. Every nation, developed or developing, links
its future with thestatus of the child.
Childhood
holdsthe potential and also sets thelimit to the future development of the
society. Children arethe greatest gift to the humanity.Mankindhas best hold of
itself. The parentsthemselves live for them. They embody the joy of life in
them and in the innocence relieving the fatigue and drudgery in their struggle ofdaily
life. Parents regain peace and happiness in the company of the children. The
children signify eternal optimism in the human being and always providethe
potential for human development. If the children are better equipped with a
broader human output, the society will feel happywith them. Neglecting the
children meansloss to the society asa whole. If children are deprived of theirchildhood
- socially, economically, physically andmentally - thenationgets deprived of
the potential human resources for social progress, economic empowerment and
peace and order, thesocial stability and goods citizenry. The foundingfathersof
the Constitution, therefore, have bestowed the importance of the role of the
child in its best fordevelopment. Dr. Bhim Rao Ambedkar, was for a head of his
time in his wisdom projected these rights in the DirectivePrinciples including
the children as beneficiaries. Their deprivation has deleterious effect on the
efficacy ofthe democracy and the rule of law.
Article
39 (e) of the Constitution enjoins that the State shall direct its policytowards
securing the health and strength of workers, men and women; and the children of
tender age will not be abused; the citizens should not be forced by economic
necessity toenter avocations unsuited to their age or strength. Article 39(f)
enjoins that theStat shall direct its policy towards securing thatchildren are
given opportunities and facilities todevelopin a healthy manner and in
condition of freedom and dignity and the childhood and youth are protected
against exploitation and againstmoral and material abandonment. Article 45
mandates that the State shall endeavour to provide free and compulsory
education for all childrenuntil they complete the age of 14years. The period
often years provided thereinhas lost its relevance since as on date, morethan
78 million outof 405million children, 78%of them are employed between the age
of 5 to 14 years without any basic and elementaryeducation, healthy, access to nutrientfood
and leisure. Article24 ofthe Constitution prohibits employment of the children infactories
etc.so that no child below theage of 14 yearsshall be employed to work in any
factory ormine or engaged in any other hazardous employment. Article 21mandates
that no person shall be deprived of hislife orpersonal liberty exceptaccording
to the "procedureestablished bylaw" which this Court has interpreted tomean
"due process of law". The bare of the povertyis theroot of the child labour
and they are being subjected to deprivation of their meaningful right to life,
leisure, food,shelter, medical aid and education. Every child shall have
without any discrimination on the ground of cast, birth, colour, sex, language,
religion, social origin, property or birth alone, in the matter of right to
health, well being, education and social protection.Article51-A enjoinsthat it shallbe
theduty of every citizen to develop scientific temper, humanismand the spirit
of inquiryand tostrivetoward excellence in all sphere of individual andcollective
activities so that the nation constantly rise to higherlevelsof endeavours and
achievement. Unless facilities and opportunities are provided to the children,
in particular handicapped by social, economic, physical or mental disabilities,
the nation stands to lose the human resources and good citizen.
Education
eradicatesilliteracy ameans to economic empowerment and opportunity to life of
culture. Article 26(1) of Universal Declarationof Human Rightsassuresthat
everyone has right to education which shallbe free, at least at the elementary
and fundamental stages. Elementary education shall be compulsory. Technical andprofessional
education shallbe madeavailable and higher education shall equally be
accessible to all on the basis of merit.
Education
enables development of human personality and strengthens the respect for human
right and fundamental freedoms. It promotes understanding, tolerance and
friendship among people. It is, therefore, the duty of the State to provide
facilities and opportunities to the children drivento child labourto develop
their personality as responsible citizens.
Due to
poverty, children and youthare subjected to may visible and invisible
sufferings and disabilities, in particular, health, intellectual and social
degradation and deprivation. The Convention on the Rights of the Child which
was ratified bythe Government of Indiaon November 20,1989 recognised therights of the child
for full and harmonious development ofhis or her personality.Child should grow
up in a family environment, in an atmosphere of happiness,love and
understanding. Thechild should be fullyprepared to live an individual life in
society. Article 3 providesthat in allactionsconcerning children whether
undertaken by public or private social welfare institutions, courts of law,
administrative authorities or legislative bodies, the best interest of the
child shall be the primary consideration. Article 27(1) provides that the State
parties recognise the right of every child toa standard of living adequate for
the child's physical, mental, spiritual, moral and social development.Article28
provides thus:
"1.
State Parties recognise the right of the child to education, and with a view to
education, and with a view to achieving this right progressively andon thebasis
of equal opportunity, they shall, in particular:
(a)
Make primary education compulsoryand availablefree to all;
(b)
Encourage the development of different forms of secondary education, including
general and vocational education, make them available and accessible to every
child, and take appropriate measures such as the introduction of freeeducation andoffering
financialassistance incase of needs;
(c)
Make higher education accessibleto allon thebasis of capacityby every
appropriate means;
(d)
Make educational and vocational information and guidance available and
accessible to all children;
(e)
Take measures to encourage regular attendance at schools and the reduction of
drop-out rates.
2.StatesPartiesshall
take all appropriate measures to ensure that school disciplineis administered ina
manner consistent with the child's human dignityand in conformity with the
present Convention.
3.State
Parties shall promote and encourage international co- operationin matter
relating to education, in particular with a view to contributingto the
elimination of ignorance and illiteracythroughout the world and facilitating
access to scientific and technical knowledge and modern teaching methods in
this regard.
Particularaccount
shall be taken of the needs of developing countries." Article 31(1) recognises
the rightof the child torest and leisure, to engage in play and recreational
activities appropriate tothe age of the childand to participate freely in
cultural life and the arts. Article 32() which is material for the purpose of
this case reads as under:
"1.
States Parties recognize the right of the child to be protected from economic exploitationand
from performingany work that is likely tobe hazardous or to interfere with the
child's education, or to beharmfulto the child's health or physical, mental,spiritual,
moral orsocial development.
2.
States Parties shall take legislative, administrative, social and educational
measure to ensure the implementation of the present article. To this end, and
having regard tothe relevant provisions ofother international instruments.
States
Parties shall in particular.
(a)
Provide for a minimum age or minimum ages for admission to employment;
(b)
Provide for appropriate regulation of the hours and conditionsof employment;
(c)
Provide for appropriate penaltiesor other sanctions to ensure theeffective
enforcement of the present article." Article 36 statesthat State parties hall protect the child against all otherforms of
exploitation prejudicial to any aspects of the child's welfare. No doubt, the
Government, while ratifying the Convention with a reservation of progressive
implementation of the governance, reminded itself of the obligations undertaken
thereunder, but they do not absolve the Statein its fundamental governance of
the imperative of Directive Principles of the Constitution renderingsocio-economic
justiceto the child and their empowerment,full growth of their personality -
socially, educationally and culturally - with a right to leisureand opportunity
for development of the spirit of reform,inquiry, humanism andscientific temper
to improve excellence - individually and collectively.
InMaharashtra
State Board of Secondary and Higher Education vs. K.S. Gandhi [(1991) 2 SCC
716], right to education atthe secondary stagewas held to be a fundamental
right. In J.P. Unnikrishnan vs. State of Andhra pradesh[(1993) 1 SCC642], a Constitution Bench hasheld education uptothe
of14 years to bea fundamental right;
right
to health has been held to be a fundamental right;
right
to potable water has been heldto be a fundamental right; meaningful right to
life has been held to be a fundamental right. Thechild is equally entitled to
all these fundamental rights. It would, therefore,be incumbent upon the Stateto
provide facilitiesand opportunity as enjoined under Article 39(e) and (f) ofthe
Constitution and to prevent exploitation of their childhood dueto indigence and
vagary. Asstatedearlier, theiremployment - either forcedor voluntary- is
occasioned dueto economic necessity; exploitation of their childhood due to
poverty, in particular,the poor and the deprived sections of the society, is
detrimental to democracy and social stability, unity and integrity of the
nation.
Various
welfare enactments made by the Parliament and the appropriate State
Legislatures are only teasing illusions anda promise ofunreality unless they
are effectively implemented and make the right to like to the child driven to labour
a reality, meaningful and happy.
Article24
of the Constitution prohibits employment of the child below theage of 14 yearsin
any factory or mine or in any other hazardous employment, but it is ahard
reality that due to poverty child isdriven to be employedin a factory, mine or
hazardous employment.Pragmatic, realistic and constructive stepsand actions arerequired
to be taken to enable the child belongingto poor, weaker sections, Dalit and
Tribes and minorities, enjoy the childhood and developits full blossomed
personality - educationally, intellectually and culturally - with a spirit of
inquiry, reformand enjoyment of leisure.The child labour, therefore, mustbe
eradicated through well-planned, poverty- focussed allievation, development andimposition
of trade actionsin employment may drive the children and massthem up into
destitution and other mischievousenvironment, making them vagrant, hard
criminals and social risketc.
Therefore,
while exploitation of the child must be progressively banned, other
simultaneously alternatives to the child should be evolved includingproviding
education, health care, nutrient food, shelter and other means of livelihood
with self-respect and dignityof person.
Immediate
ban of childlabour would beboth unrealistic and counter-productive. Banof
employment of children must begin from most hazardous andintolerable activities
like slavery, bonded labour,trafficking, prostitution, pornography and
dangerous formsof labour and the like.
Illiteracyhas
many adverse effects in a democracy governed by rule of law. A free educated
citizen could meaningfully exercise his political rights, discharge social
responsibilities satisfactorily anddevelop spirit of tolerance and reform.
Therefore, education is compulsory.
Primaryeducation
to the children, in particular, to the child from poor, weaker sections, Dalits
and Tribes and minorities is mandatory. The basic education and employment-
oriented vocational education should be imparted so as to empowerthe children
with these segments of the society to retrieve them from poverty and, thus,
develop basic abilities, skills and capabilities tolive meaningfullife for
economic and social empowerment. Compulsory education, therefore, to these
children is one of the principal means and primary duty of the State for
stability of the democracy, social integration and to eliminate social
tensions.
InM.C.
Mehta vs.State of Tamil Nadu & Ors. [(1996) 6 SCC 756], this Courthas
considered the constitutional perspectives of the abolitionof thechild labour
and the child below 14years of age inthe notorious Sivakasi Match industries. Ithas
mentioned in para 12 of thejudgment the number of total workers and the child
workers employed in the respectiveindustries in the country. Ithas surveyed variousenactments
which prohibit employment of the child;
the
details thereof are not necessaryto be reiterated. In para 27, it has notedthe
causes forfailureto implement the constitutional mandate andhas given various
directions in that behalf. We, therefore, reiterate the directions given
therein as feasible inevitable. Werespectfully agreeing with them and reiterate
the need fortheir speedy implementation.
Weare ofthe
view that a direction needs to be given that the Government ofIndia would
convene a meeting of the concerned Ministers ofthe respective State Governments
and their PrincipalSecretaries holding concerned Department, to evolvethe
principles ofpolicies for progressive elimination ofemployment of the children
below the age of 14 years in all employments governed by the respective
enactments mentioned in M.C. Mehta's case; to evolvesuch steps consistent with
the scheme laiddown inM.C. Mehta's case, to provide (1) compulsory education toall
children either by the industries itself or in co-ordination with it by theState
Government to the children employed in the factories, mine or any other
industry, organised or unorganised labour with such timings as is convenient to
impartcompulsory educations, facilities for secondary, vocational profession
and higher education; (2) apartfrom education, periodical health check-up; (3) nutrientfood
etc.; (4) entrust the responsibilities for implementation of the principles.
Periodical reports ofthe progress made in that behalf besubmitted to the
Registry of this Court. The CentralGovernment is directed to convene the
meeting within two months from the date of receipt of the order. After evolving
the principles, a copy thereof is directed to be forwarded to the Registry of
this Court.
Shri Rakesh
Dwivedi, learnedAdditional Advocate Generalof U.P.and Shri B.B. Singh, learned
counsel for the State of Bihar,have taken notice on behalf of the States of
Uttar Pradesh and Bihar respectively.They are directed to obtain the copy of
the judgment and send the same to the respective States and to ensureimplementation
of directions issued by thisCourt from time to time to implement the welfaremeasures
envisaged inthe above orders until the principles andpolicies to beevolvedin
the aforedirected conference and implemented throughout the country.
Post
this matter after three months.
The
writ petitionis, accordingly, disposed of subject to the above directions.
REPORTABLE-426/97
SECTION-PIL SUPREME COURT OF INDIA
No:F.3/Ed.B.J./103/97 New
Delhi Date : 3.5.97
CORRIGENDUM This Court's Order in W.P.(C) No.12125 of 1984 Bandhua Mukti Morcha
v. Unionof India & Ors.
(Dated
: 21.2.1997) PAGE NO. LINENO. FORREAD 1 (AFTER THELINE NO.6 TO BEADDED WITH
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