CHAPTER- IV
THE INDIAN LEGAL UMBRELLA
The Vedic sages of India Prayed, “Serve Bhavantu Sukhumi Serve Santo
Niramaya ,Serve Bhadrani Pashyantu Ma Kashchild Dukhbhag Baha wet”
meanings; may prosperity prevails everywhere and may everybody be fearless,
may everyone perceive good and the evil be no more there.
This depicts that since those very old days only the concept of making
society free form fear & evil was into existence and the rights of human beings
were recognized throughout the nook and corner but one of the greatest
accomplishment of the civilization in the 20th century is the acceptance of
Human Rights as an integral part of governance for which the state has
accepted obligation and accountability.
I. Constitutional Provisions:
Children are future of the country and need special protection because of
the physical and mental faculties they possess this fact made an abiding
influence on the minds of the constitution makers when they drafted the
constitution of India. Our Constitution-makers, wise and sagacious as they
were, had known that the India of their vision would not be reality if the
children of country are not nurtured and educated. For this, their exploitation
by different profit-maker for their personal gain had to be first made
The rights against exploitation were mentioned in the draft proposed by
Dr. 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 being and
1 The Framing of the Indian Constitution-A Study, Vol.p. 243.
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Preamble to the Constitution is said to be the key to open the mind of the
makers and shows that general purpose for which they the several provisions in
the Constitution. According to the Preamble, State aims to secure to all its
citizens Justice, (Social, Economic, and Political). Children are also citizen of
India and the plight and pathetic conditions of children in our country is not an
unknown fact. So, State is under duty to make various provisions for the
betterment of the economic and social condition of children, may it be by
enacting various welfare legislations for their benefit or for prevention of their
exploitation or for protection of the children from the various malpractices in
the society which are hazardous not only to their health but also to their
physical and mental growth and development.
The Constitution makers reflecting their anxiety to protect and safeguard
the interest and welfare of the children have incorporated various provisions in
Part III & IV of the Constitution dealing with the Fundamental Rights and
Directive Principle of State Policy.
Article 15 (3) provides that the state shall not be prevented from making any
special provision for women and children. It means that State is free to enact
any legislation for the welfare and development of the children. Such special
legislation cannot be challenged on the ground that they violate the principle of
Article 14. This is in reference to provisions which are to their advantage and
which give them to extra protection they need.2
The Constitution of India, through various Articles enshrined in part II
& IV dealing with the Fundamental Rights and the Directive Principle of State
Article 21 mandates that “No person shall be deprived of this life or personal
liberty accepts according to the procedure established by law.”
2 Mamta Rao, Law Relating to Women & Children, 2005, Eastern Book Company, Lucknow.
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Article 21-A provides, “that the State shall provide free and compulsory
education to children below the age of six to fourteen years in such manner as
the state may, by the law, determine.”
Article 23(1) of the Constitution is a charter of Human Dignity and provides
Traffic in human being and other similar forms of forced labour are prohibited
and any contravention of this provision shall be an offence punishable in
Article 24 of the Constitution prohibits employment of the children in factories
etc. so that “No child below the age of 14 years shall be employed to work in
any factory or mine or engaged in any other hazardous employment.”
Article 39(e) of the Constitution enjoins that, “The State shall direct its policy
towards 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 to enter avocations unsuited to their age or strength .”
Article 39(f) enjoins that, “the State shall direct its policy towards securing that
children are given opportunities and facilities to develop in a healthy manner
and in conditions of freedom and dignity and their childhood and youth are
protected against exploitation and against moral and material abandonment.”
Article 45 mandates that, “The State shall endeavor to provide free and
compulsory education for all children until they complete the age of six years.”
Article 47 mandates that “the State shall regard the raising of the level of the
nutrition and the standard of living of its people and the improvement of the
public health as among its primary duties in particular.”
Article 51-A (k) provides that, “who is a parent or guardian to provide
opportunities for education to his child, or as the case may be, ward between
the age of six and fourteen years.”3
Thus the Constitution mandates that every child shall have the right to
health, well-being education and social protection without any discrimination
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on the ground of caste, birth, color, sex, language, religion, social origin,
Child labour is a matter on which both the Union Government and State
Governments can legislate. A number of legislative initiatives have been
(a) The Children (Pleading of Labour) Act, 1933:
The major national legislative development in India started in year 1933
when the first Act relating to child labour “Children (Pleading of Labour) Act,
of February 1933” was enacted .This legislation under section 2 prohibits all
types of agreements of pleading the labour of child between the parents or
guardian in return for any payment or benefit received or to be received,
undertakes to allow the service of the child to be utilized in any employment.
This legislative development was followed by the Employment of
Children Act, in 1938. Subsequently various other legislations were passed that
progressively extended legal protection to children. Provisions relating to child
labour under various enactments such as Factories Act, plantation Labour Act,
etc. have concentrated on aspects such reducing working hours, increasing
minimum wage and prohibited of children in occupations and processes
detrimental to their health and development.
(b) The Employment of Children Act, 1938
This Act was enacted to prevent the evils of employment of children in
workshop which were not covered in Factories Act.
1. The Act prohibits the employment of children below the age of 15 in
any occupation connected with the Transport of goods or mail by
railways, connected with a port authority within the limits of any port, or
connected with any work on railway premises / Section 3(3) / a child
who has completed his 14 years will be allowed to work in any
workshop where any of The processes that in the schedule is carried on /
Section 3(3).Tanning and (ix) Wood cleaning.
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2. The (state) government after a notification in the gazette and a notice
period of three month may add any description of processes to the
3. The Act clearly states in section 3(3) that family units and training
schools of government will not come under this provision.
4. Section 3-B states that before any work set out in the schedule are
carried out in any workshop, the inspector must receive a notice
form the occupiers’ giving full details about name and situation of the
workshop, name of actual manager and the nature of the processes to be
carried on in workshop.
I. Certificate of age of the child workers are required from a prescribed
II. All employers employing children must maintain registers (Section3-
D), showing the name and date of birth of every child less than 17
years of age so employment or permitted to work, the work and rest
periods, the nature of worked.
III. Notice clearly sting abstracts of Sub-section 1 and 2 of section
3And section 4 are to be prominently displayed at all railway stations
IV. Violation of this Act can mean imprisonment from 3 months to one
year fine from Rs. 500 to Rs. 2000. For someone who has been
convicted earlier the period of imprisonment can go up from 6 month
(c) Minimum Wages Act, 1948:
This Act, defines a Child as “a person who has not completed his 14
years of age.5” The Act under Sec. 3(3) empowers the appropriate Government
to fix the minimum rates of wages for children. Rule 24 (1) (b) of Minimum
wages Central Rules, 1950 prescribes the hours of work for the child and rule
4 Labour.nic.in/cwl/Child Labour Act.doc.
5 Sec.2 (bb) of the Act. Inserted by Act 61 of 1986.
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25(1)(b) of the Minimum wages for the child. The Act does not expressly
prohibit the employment of children by an employer in the scheduled
employment. This anomaly should be done away in order to avoid the
(d) The Factories Act, 1948:
The Act extends to the whole India except the State of Jammu and
Kashmir.6 This Act defines a child as a person who has not completed his 15
years of age.7 However the Act prohibits the employment of children below
the age of 14 years in any Factory under Sec. 2 (b) of the Act. Adolescent is a
person who has completed his 15th years of age but has not completed his 18
years8. This is the only Legislation in India which defines an adolescent within
that age range. All other legislations which deal with the prohibition of
employment of children define an adolescent as a person who has completed
his 14th year but not completed 18 years.9
The Act also prohibits the employment of the children to any part of the
factory for pressing cotton in which a cotton opener is at work, except where
the feed end of a cotton opener is in a room serrated from the delivery end.110
The state government is empowered by this Act to make rules
prescribing the maximum weights which may be lifted by adolescents and
Children.111 Besides a weekly day of rest every child worker who has worked
for a period of 240 days or more in a factory during a calendar year is entitled
during the subsequent year of leaves with wages at the rate of one day for every
15 day of work as against every 20 day in the case of an adult workers.12 Rest-
shelters, canteens, etc. are also to be provided to all workers including
9 The Law Relatin g to Prohibition and Regulation of Employment of Children in India-A critique-by
Dr. Sharath Babu, Mrs. Berndinen Rowe & Mrs. Anuradh Saibaba (NYAYA DEEP Vol.2007)
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children.13 Section 67 provides that: “No child who has not completed his 14
years shall be required or allowed to work in any factory.
The object of this statutory restriction over the employment of young
person is to prevent exploitation of young labourers and to provide for their
safety. This was the view expressed by Chief Justice Narsimha, Orisa High
Court in Jhunjhunwalla vs. B.K. Patnaik14 where the occupier of glass factory
was severely punished for employing 14 adolescent, without a certificate of
fitness required under section 68 and 69 of the factory Act.
In M.C. Mehta vs. State of Tamil Nadu15 , it was held that children can
be employed in the processes of packing but the packing should be done in an
area away from the place of manufacture to avoid exposure to accident. The
minimum wages for children labour should be fixed. The tender hands of the
young workers are more suited to shorting out the manufacture product and
proceeding it for the purpose of packing in consideration of the year special
adoptability at least 60 per cent of the prescribed minimum wage for an adult
employee in factories doing the same job should be given to them.
At same time in Bhageerathan vs. state16 , it was held that if and
accused employer is unable to prove that children employed were not below
14 years, he can be convicted for the offences of employing child labour .
(e) The Plantation Labour Act, 1951
The Act covers in the first in the first instance all tea, coffee, rubber,
cinchona, cordamory plantation and areas 10.117 hectares or more. In which 30
or more persons are employed17 or were employed on any day of the
preceding 12 months. Further, the State Government is, however, empowered
to extend all or any of the provisions of this Act to any land used or intended to
the used for growing and plantation even if it measures less than 10.117
15 (1991) 1 SCC 283: 1991 SCC (L&S) 299.
17 The Plantation Labour Act, 1951, Sec. 4(a).
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hectares and the number of persons employment is less than 30 person are
employed immediately before the commencement of the Act would not be
The Act prohibited the employment of children less than 12 years.18
An adolescent between 15-18 years cannot be employed from work unless he is
certificate fit for work by a surgeon.19 Such certificate is valid only for a
year.20 Use of false certificates of fitness is punishable by imprisonment which
may extend to one month or with fine or both.21
This Act is, however, more comprehensive in the sense that it alone vide
sections 5, 6 and 7 and so also housing, medical and recreation facilities.
Perhaps the legislators were moved to make all these provisions in this Act
because of the complaint that plantation labour is commonly known as “Family
Labour” as against “Individual” child labour 22
This Act also to the extent to the whole of India 23 and includes all
excavations where any operational for the purpose of searching for or obtaining
minerals is carried ought.24 This Act also define child as a person who has not
completed his 15 years. 25 This Act not only prohibits of children in any
mines, but also prohibits the presence of children 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.26 Even an adolescent is not allowed to work in part of a
mine which is below ground, unless he has completed his 15 years and has a
medical certificate of fitness for work.27 A certificate is valid for 12 months.28
22 P.L. Mehta and S.S. Jaiswal: Child Labour and the Law – Myth and Reality of child Labour
welfare, Deep and Deep Publications, New Delhi, 1996.
23 The mines Act, 1952, Section 1(2).
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This Act also says that adolescent is allowed to be employed in any mine
except between 6 A.M. and 6 P.M. this Act also includes:
(i) All bearing bore holes and oil well;
(ii) All shafts, in or adjacent to and belonging to mine, whether in the course
(iii) All level and inclined planes in the course of being driven;
(iv) All converse or aerial railways provided for the bringing into or removal
from mine of minerals or other articles or the removal of refuse there
(v) All audits, planes, machinery, workers, railway, tramways, and riding;
(vi) In or adjacent to the belonging to a mine;
(vii) All workshops situated within the precinct of a mine and under the same
management and used solely for purpose connection with that mine or a
number of mines under the same management;
(viii) All power stations for supplying solely for the purpose of working the
mines under the same management;
(ix) Any premises exclusively occupied by the owner of the mine and for the
time being used for depositing refused from a mine or in which any
operation in connection with such refuse is being carried on; and
(x) Unless exempted by the central government by notification in the official
gazette, any premises or part thereof in adjacent to and belonging to a
mine, on which any process ancillary to getting dressing or preparation
for sale of minerals 29 or of coke is carried on.
(g) The Merchant Shipping Act, 1951
Employment of children- No person under 14 years if age shall be
engaged or carried to sea to work in any capacity in any ship, except:
(a) In a school ship, or training ship, in accordance with the prescribed
(b) In a ship in which all persons employed are members of one family; or
29 The Indian Labour Year Book (1974), p.175.
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(c) In a home trade ship of less than two hundred tons grass; or
(d) Where such person is to be employed on nominal wages and will be in the
charge of his father or other adult near male relative.30
Section 110-113 lay down certain conditions from the employment young
person who are above 14 years but who have not completed 18 years of age
penalty can also be imposed for violating provisions.
(h) The Motor Transport Workers Act, 1961
The Motor Transport Workers Act, 1961 also contains a provision
according to which employment of a child who has attained the age of 14 years
cannot be allowed. Prohibition of employment of children --- No child shall be
required or allowed to work in any capacity in any motor transport
undertaking.31 Section 22 mandates that adolescents employed as motor
transport workers are to carry tokens. “ No ad scent shall be required or
allowed to work as a motor transport worker in any motor transport
(a) A certificate of fitness granted with reference to him under Section 23 is in
custody of the employers; and
(b) Such adolescent carries with him while him at work a token giving a
reference to such certificate.”32
Section 23 provides for a certificate of fitness.
1. A certifying surgeon shall, on the application of any adolescent or his
parent or guardian accompanied by a document signed by the employer
or any other person on his behalf that such person will be employed as a
2. Workers in a motor transport undertaking; if certified to be fit for that
work, or on the application of such employer or any other person on his
30 The Merchant Shipping Act, 1951, Sec. 109.
31 The Motor Transport Workers Act, 1961, Sec.21.
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behalf with reference to any adolescent intending to work, examine such
person and ascertain his fitness for work as motor transport workers.
3. A certificate of fitness granted under this section shall be valid for a
period of 12 months from the date thereof but may be renewed.
4. Any fee payable for a certificate under this section shall be paid by the
employer and shall not be recoverable from the adolescent, his parent or
(i) The Bidi and Cigar Workers (Condition of Employment) Act, 1966:
The Bidi and Cigar Workers (Condition of Employment) Act, 1966 is a
special enactment to regulate the conditions of work of bidi and cigar workers.
According to this Act, no child, below the age of 14 years shall be employed in
any industrial premises. Subject to the provisions of the Act children who have
completed the age of 14 years but not 18 years may be allowed to work. Under
section 25 of the Act it is provided that no young person shall be required to
work in any industrial premises except between 6 A.M. and 7 P.M. Thus it
prohibits employment during the night.33
(j) Shops and Commercial Establishment Act, 1969:
This Act applies to shops, commercial establishments, restaurants and
hotels places of amusement in notified urban areas to which the Factories Act
does not apply. Further the state government is empowered to extend the
coverage of the Act to any Establishment.
The minimum age of employment in shops and commercial
establishment is 12 years in Bihar, Gujrat, J and k ,M.P., Karnataka, Orissa,
Rajasthan, Tripura, U.P., Goa, Daman and Diu and Manipur and 14 years in
A.P.; Assam, Haryana, H.P.; Kerala, Tamil Nadu, Punjab, Delhi, Chandigarh,
Pondicherry and Meghalaya. The minimum age of employment is 15 years in
Maharastra. There is no separate shops and commercial Establishment Act in
Andman & Nicobar, Arunachal Pradesh, Dadra Nagar Haveli Lakshadweep,
33 The Beedi and Cigar Workers (Condition of Employment) Act, 1996.
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(k) Bonded Labour Act, 1976
The Bonded Labour System was abolished throughout the country with
effect from 25 October 1975, under the Bonded Labour System (Ordinance)
1975, which was later converted to the Bonded Labour system (abolition) Act,
1976. If freed unilaterally all the bonded labourers from bondage with
simultaneous liquidation of their debts. This Act is being administered by the
Forcing a person to work under bondage is punishable with
imprisonment for term, and a fine which may extent to Rs. 2,000. A freed
bonded labourer is provided rehabilitation grant to the extent of Rs.10, 000
which is contributed both by the Central and the State Government concerned
(l) The Child Labour (Prohibition & Regulation) Act, 1986:
The Child Labour (Prohibition &Regulation) Act, 1986 of India was the
culmination of efforts and ideas that emerged from the deliberations and
recommendations of various committees on child labour. The Act aims to
prohibit the entry of children into hazardous occupations and to regulate the
services of children in non-hazardous occupations.
The Act in particular, bans the employment of children below the age of 14
years in 13 occupations and 57 processes lays down a procedure to make
addition to the schedule of banned occupations or processes; regulates the
working condition of children in occupations where they are not prohibited
from working; lays down penalties for employment of children in violation of
the provisions of this Act and other Acts which forbid the employment of
children; thereby bringing uniformity in the definition of the “Child” in relates
34 Mamta Rao, Law Relating to- Women & Children, Estern Book Company, Lucknow, 2005.
35 Pramila h. Bhargava, the elimination of child labour—Whose Responsibility? Sage Publication.
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The objects of the Child Labour (Prohibition and Regulation) Act, 1986 are:
1) Ban the employment of children, i.e. those who have not completed
their 14 year, in specified occupation and processes;
2) lay down procedure to decide modification to the schedule of banned
3) Regulating the condition of work of children in employments where
they are not prohibited from working;
4) Law down enhanced penalties for employment of children in violation
of the provision of this Act, and other Acts which forbid the employment of
5) To obtain uniformity in the definition of “Child” given in the various
According to this Act, the employment of children Act, 1938 is repealed.
All rules made in this Act will be in children to the provisions of the Factories
Act, 1948, the plantation labour Act, 1951 and Mines Act, 1952:
i) According to this Act “Child” means a person who has not completed
ii) Again, family unit and training center are not included in the preview of
iii) The Act provides for the setting up “Child Labour Technical advisory
committee” for the purpose of addition of occupations and processes to the
schedule. A notice of at least three months will be given by the central
iv) The Act clearly lies down that no child will be allowed to work for more
than six hour per day [Section 7(3)] with a rest period of one hour after three
hours of work. Once a weak he will be given a holiday.37
(m) Right to Education Act, 2010
36 The Child Labour (Prohibition & Regulation) Act, 1986, Sec. 2(ii).
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The importance of education as a means for emancipation of human beings and
liberating them from ignorance has for long time been accepted in national and
international legal systems. With this in focus efforts have also been made to
educate people and thereby contribute to the development of society consistent
with the dignity of society. Internationally, the importance of right to education
received much appreciation in the UN Declaration of Human Rights, 1948 and
later instruments like International Covenant on Economic, Social, and Cultural
rights, the Convention against Discrimination in Education, 1962 etc.
Our constitutional makers, closely following this international trend also
sought to make the right to education a constitutional goal and placed it under
Part IV directive principles of state policy. Accordingly article 41, 45 and 46 of
the constitution dealt with varied aspects of right to education1.But the inability
of the constitutional provisions to achieve the object of free and compulsory
education often led to conflict with judicial policy in this respect. An
exposition of this conflict requires a close look at the development of the
legislative and corresponding judicial approach as addressed by the Supreme
III. JUDICIAL APPROACH:
The judiciary has almost brought a revolution in the life of child workers
in India. Our constitution accords a dignified and crucial position to the
judiciary. It is the greatest unifying and integrating force of our country. The
Supreme Court is at the apex of the well –ordered and well –regulated judicial
structure of the country. It expounds and defines the true meaning of law. It is
the ultimate interpreter of the constitution and this puts a second brake on the
legislative and the executive the first being the political check of the people
themselves. The constitution puts on obligation on every organ of the state,
including the judiciary, to usher in a new social order in which justice-social,
economic and political and equality of status and opportunity, prevail. The final
burden of interpreting three elastic provisions it upon the courts. Courts are to
contribute to law’s growth without overstepping the boundaries of the system;
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in other words, how to reconcile tradition and convenience or the claims of
stability and those of changes. It is the duty of the judiciary to recognize the
development of the nation and to apply established principles of the positions
which the nation in its progress from time to time assumes. The judicial organ
would otherwise separate itself from the progressive life of community and act
as a clog upon the legislative and executive departments rather than as an
interpreter. Indian judiciary is charged with the duty of holding the balance
even between a state or states and the union and between the state and the
citizen, and sometimes between the state and the individual. It has to hold the
scales even in the legal combat between the rich and the poor, the mighty and
the weak without fear or favor. The role of judiciary in India has been quite
significant in promoting the child welfare. Mr. Justice Subba Rao, the former
Chief Justice of India, rightly remarked.
“Social Justice must begin with child unless tender plant is properly
nourished; it has little chance of growing into strong and useful tree. So, first
priority in the scale of social justice should be given to the welfare of children.
Some of Landmark decisions are:-
In Gomadia vs. Emprer38 Bombay High Court has judged the object of
section 20 of the Indian Factories Act, 1911 which prohibits the employment of
children near the cotton pressing process. In this case the court went step
further in interpreting the intention under the Act and certain valuable
directions to safeguard the interests of both child and women workers who are
working in the cotton pressing room of the factory.
In Ramdham vs. King Emperor 39 Madras High Court prohibit child
labour in factories cannot be ignored. Jackson ; will be remembered time and
again for his lucid analysis and wide interpretation that he had applied to find
ought the intention of the legislators in provisions of the Indian Factories Act,
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1911 and the firm decision that he has taken in the light of this analysis to
abolish the appointments of children in factories.
In Emperor vs. Gokuldas Haridas40 Bombay High Court has
considered very seriously the failure of the employer in employing children
(girls) without fitness certificate. Such step was taken by the court with an
intention to implement strictly the revisions of section 23 (a) of the Indian
Factories Act, 1911 and also not to give the employer any scope of appointing
children contrary to the provisions of the Act and thereby to save the children,
from the vicious circle of child labour.
In Jhunjhunwala vs. V.N. Patnik 41 the Orissa High Court delivered an
appreciable judgment enforceable the provision under section 68, 69, 70, 75,
and 104 of the Factories Act, 1948 to protect the interest of the child workers.
In the said case while interpreting section 75 of the Ac, the court has widened
the power of the inspector of Factories with an intention to prohibit child
employment in hazardous work in Factories and thereby to safeguard the
In People’s Union For Democratic Rights vs. Union of India42 the
Supreme Court has emphasized that article 24 embodies a fundamental rights
which is plainly an indubitably enforceable against everyone. By reason of its
compulsive mandate, no one can employ a child below the age of 14 years in
hazardous employment like construction works.
In Rajangam, Secretary, District Beedi Workers Union vs. State of
Tamil Nadu and others43 the Apex Court of India advised that the regional
provident Fund Officer also can be helpful in implementation. The court
observed that the beedi and cigar workers (Condition of Employment) Eula,
1968 should be strictly implemented and once that is done the evil of not
41 (1964) 2 LL.J. 551 Ori. 29 CLT, 673.
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furnishing the books to the house workers would be eradicated. The court
“As establishment of the Regional Provident Fund Commissioner with full
equipment from the purpose of implementation of the status should be located
within the area and Regional Provident Fund Commission should have
direction to enforce the Act in all aspect.”
In M.C. Mehta vs. State of Tamil Nadu and others 44 the Supreme Court
Allowed children to work in a prohibited occupation like fireworks. According
to Justice Rang Nath Mishra and Justice M.H. Kania, the provision of Article
45 in the Directive Principles of State Policy still remained a for reach, though
according to this provision all children up to the age of 45 years are supposed
to be in school. Economic necessity forces grown-up children to seek
employment. Children can therefore, be employed in the processes of packing
of fireworks but packing should be done in area away from the place of
manufacture to avoid exposure to accident.
In MaharashtraState Board of Secondary and Higher Secondary
Education vs. K.S. Gandhi, right to education at the secondary stage was held
to be a fundamental rights. In Unni Krishnan, J.P. vs. State of A.P.45 a
Constitutional; Bench had held that education up to the age of 14 years to be a
fundamental right; right to health has been held to be a fundamental right. The
child is equally entitled to all these fundamental rights.
In would, therefore, be incumbent upon the state to provide facilities to
opportunity as enjoyed under article 39(e) and (f) of the constitution and to
privent exploitation of their childhood due to indigence and vagrancy. As
stated earlier, their employment – either forced or voluntary – is occasioned
due to economic necessity; exploitation of their childhood due to poverty, in
particular, the poor and the deprived sections of the society, is deter mental to
democracy and social stability, unity and integrity of the nation.
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The supreme court of India, its judgment dated 10th December, 1996 in
writ petition (civil) Number 465/1986, has given certain directions regarding
the manner in which children working in the hazardous occupations are to be
withdrawn from work and rehabilitated, and he manner in which the working
conditions of children working in non-hazardous occupations are to be
regulated and improved. The judgment of the supreme court envisages:
Simultaneous action in all districts of the country; Survey for identification of
working children Withdrawal of children working in hazardous industries and
ensuring their education in appropriate institutions Contribution of Rs. 20,000
per child to be paid by the offending employers of children to welfare fund to
be established for this purpose; Employment to one adult member of the family
of the child so withdrawn from work, and if that is not possible a contribution
of Rs. 5000 to the welfare fund to be made by the State Government; Financial
assistance to the families of the children so withdrawn to be paid out of the
interest earnings on the corpus of Rs. 20,000-25,000 deposited in the welfare
fund as long as the child is actually sent to the schools; Regulating hours of
work for children working in non-hazardous occupations so that their working
hours do not exceed six hours per day and education for at least two hours is
ensured. The entire expenditure on education is to be borne by the concerned
employer; Planning and preparedness on the part of Central and State
Government in terms of strengthening of the existing administrative,
regulatory, or enforcement framework (covering cost of additional manpower,
training, mobility, computerization etc.) employing additional requirement of
In Sathyavan Kottarkakkarab vs. State 47 in this case throwing light on
the problem of child exploitation Kerala High Court held, “Exploitation of
children in any form which has the tendency to exploit them either physically,
mentally or otherwise is objectionable. Any attempt in this direction should be
46 M.C. Mehta vs. State of Tamil Nadu (AIR 1997 SC 699).
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put an end to achieve the goals enshrined by the Indian Constitution, makers,
which are reflected in various provisions of the Constitution, namely Articles
In Bandhua Mukti Morcha v. Union of India 48 the petitioner was an
organization solely devoted to the cause of bonded labourers in the country.
The petitioner made a survey of some of stone quarries in Faridabad District
near Delhi and discovered that a number of labourers from different states of
the country were working in those stone quarries under inhuman and
intolerable conditions and the majority of them were bonded labourers. A letter
was addressed to one of the judges of the apex court containing signatures and
thumb marks of the alleged bonded labourers. The petitioner alleged violations
of the provisions of the Constitution and non-implementation of the laws
relating to the labourers working in these stone quarries. It was revealed that all
these workers were bonded labourers who were not permitted to leave the job.
Most of the labourers complained that they got very little wages from the mine
lessees or owner of the stone crushers because they were required to purchase
explosives with their own moneys, the report concluded by saying that these
workmen, “presented a picture of helplessness, poverty and extreme
exploitation at the hands of moneyed people” and they were found living a
most miserable life and perhaps beasts and animals could lead more
comfortable life than these helpless labourers 49
The supreme court on 12 December, 2005 issued notice on a PIL
seeking ban on all forms of child labour as it neglected the fundamental right to
education guaranteed to children between 6to 14 years under the recently
inserted Article 21-A OF The Constitution. Despite the active role played by
the judiciary there seems hardly any empowerment in the working conditions
of child labour in India. In numerous cases the Government has been directed
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to carry out the measures for the welfare of child workers but these
pronouncements seem to have made a little alert on the working condition
The preliminary objection raised by the respondents related to the
maintainability of the petition under Article 32 of the Constitution. The court
expressed surprise over the manner in which the State Government showed its
urgency to raise this objection so as to avoid an enquiry by the court as to
whether the workman are living in bondage and under inhuman condition.
Sounding a note of caution, Justice Bhagwati observed, “The Government and
its officers must welcome Public Interest Litigation, because it would provide
them an occasion to examine whether the poor and down trodden are getting
their social and economic entitlements or whether they can continue to remain
victims of deception and exploitation at the hands of strong and powerful
sections of the community” and whether a social and economic justice has
became a meaning-full reality for them or it has remained merely a teasing
illusion and a promote of unreality, so that in case the complaint in Public
Interest litigation is found to be , true , they can in discharge of their
constitutional obligation root out exploitation and injustice and ensure to the
weaker sections their rights and entitlements. When the court entertains public
interest litigation , it does not do so in a caviling spirit or in a confront national
mood or with a view to titling at executive authority or seeking to usurp it , but
its attempt is only to ensure observance of social and economic rescue
programme, legislative as well as executive , framed for the benefit of the
have-nots and the handicapped and to protect them against violation of their
basic human rights , which is also the constitutional obligation of the executive.
The Court is thus merely assisting in the realisation of the constitutional
objective.50 The court expressed surprise by saying that if a complaint is
made on behalf of workmen that they are held in bondage and living in a
miserable condition, it is difficult to understand how such a complaint can be
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thrown out on the ground that it is not volatile of the fundamental right of the
In Maria Grace Rural Middle School v. The Government of Tamil
Nadu51 Hon’ble court has said that Right to education after the
children/citizen completes the age of 14 years. The right to education further
means that a citizen has a right to call upon the State to provide educational
facilities to him within the limits of its economic capacity and development.
By saying so, we are not transferring Article 41 from Part IV to Part III - we
are merely relying upon Article 41 to illustrate the content of the right to
education flowing from Article 21. We cannot believe that any State would
say that it need not provide education to its people even within the limits of its
economic capacity and development. It goes without saying that the limits of
economic capacity are, ordinarily speaking, matters within the subjective
In Hayat Khan S/O. Mahaboob Khan v.s The Deputy Labour
Commissioner,52 case the appellant -petitioner was running a motor-cycle
repair shop under the name and style 'Best Service Centre'. The respondent No.
2 inspected the shop of the appellant on 18-7-2003 and reported that the
appellant did employ a child labour in his shop and hence, he had registered a
case for contravention of Section 3 of Child Labour (Prohibition and
Regulation) Act, 1986 and issued a show cause notice to the appellant calling
upon him to show cause as to why compensation should not be recovered from
him. He had also registered a criminal case against him. Before the respondent
No. 1, the appellant had also filed an application seeking permission of the
respondent No. 1 to cross examine the respondent No. 2 with regard to his
report. That application was allowed and the appellant had filed his written
argument before the respondent No. 1.
51 Decided on 4 November, 2006 available at Indian Kanoon - http://indiankanoon.org/doc
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That the respondent No. 1 had passed an order imposing compensation
of Rs. 20,000/- as against the appellant and further directed him to deposit the
said sum with the District Child Labour Rehabilitation and Welfare Fund vide
order dated t 31-3-2005, copy at Annexure 'G' to writ petition. Furthermore, a
recovery notice dated 30-7-2005 was also issued to the appellant by the
respondent No. 3 notifying him that a sum of Rs. 20,000/- would be recovered
by way of land revenue since the appellant did not pay the same.
The court held that the original order passed by the respondent No. 1 is
in compliance with the direction of the Hon'ble Supreme Court in the case of
M.C. Mehta v. State of Tamil Nadu. He had pointedly drawn our attention to
para (27) of the said judgment, which reads as follows: It 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
aliunde, 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 in so far as would 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 390, it seems to
us that the least we ought to do so see to the fulfillment of legislative
intendment behind enactment of the Child Labour (Prohibition and Regulation)
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Act, 1986. Taking guidance there from, 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 appoint 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. The 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 nationalized bank or other public body.
Right against exploitation is guaranteed by Articles 23 and 24 of the
Const. Article 39(f) casts a duty upon the State to direct its policy towards
securing that children are given opportunities and facilities to develop in a
healthy manner and conditions of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and material
abandonment. Infringement of fundamental right guaranteed by Article 24, it
seems, is a tort which is actionable per consent by the child and/or his parents
is no defence and if right to education is a fundamental right, State is equally
liable to pay compensation for not providing free education to children, upto
the age of 14 years belonging to weaker section of society. There is no denying
the fact that the laudable constitutional objectives afore-stated were sought to
be achieved by the Supreme Court in the manner indicated in M.C. Mehta's
case (AIR 1997 SC 699) (supra) but the principle of law well settled is that no
man should be condemned unheard and therefore, it follows that before, a
employer is asked to pay compensation, he must be given reasonable
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opportunity of being heard as against the report submitted by the Inspector for
realisation of the compensation at the rate of Rs. 20.000/- per child. The
objections if any, filed by the employer on receipt of the show cause notice
must also be reckoned with analytically in a lawful and adjudicatory manner
before proceeding to realise the amount of compensation. The imperative
function of the Inspector appointed under Section 17 of the Act, is to secure
compliance with the provisions of the Act, and see that for each child employed
in antagonism of the provisions of the Act, the Employer concerned pays Rs.
20,000/-. The position of the Inspector qua the provisions encapsulated in the
Act is that of a Prosecutor and it must not be expected of him to discharge the
adjudicatory functions. It would have been ideal, if the "appropriate
government" had been proactive in framing the rules and procedure for the
enforcement of rights and liabilities arising from large scale infringement of
fundamental rights of the children below the age of 14 years as a result of
failure to perform public law duty under the constitution which is sue generis
i.e. a class in itself as recognised by the Supreme Court in its judgment in M.C.
Mehta's case, In the absence of rules, I find no other judicial alternative forum
for adjudication of any dispute arising out of Inspection report except the
authorities empowered to issue recovery certificates for realisation of the
amount of compensation vide G.O. dated 5-6-1998, namely, who are well
equipped to perform adjudicatory junction after notice to the Employer to show
cause why the recovery certificate for realisation of the amount of
compensation at the rate of Rs. 20,000/-per child be not issued. It cannot be
repudiated that Addl/Deputy/Asstt. Labour Commissioner appointed for
issuance of recovery certificates are independent authorities and being
connected with adjudication of labour disputes, it would be within their briefs
to decide any controversy such as the controversy whether the child labour is
below 14 years and whether the child labour said to have been engaged is
pursuing any employment of hazardous nature. In Seth Banarasi Das v. District
Magistrate/Collector Meerut, the Supreme Court held that proceedings for
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recovery are like execution proceedings and Recovery Officer/Collector too
can examine all questions going to the root of liability but since the
Government have appointed Addl./Asstt. Labour Commissioner to issue
recovery certificates, propriety dictates that disputes, if any going to the root of
liability be resolved by such officer before issuing the recovery certificates.
In Tamil Nadu Higher Secondary Post. vs. The State Of Tamil
Nadu53 State parties recognise the right of the child to education, and with a
view to achieving this right progressively and on the basis of equal opportunity,
(a) make primary education compulsory and available free 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 free education and offering financial assistance in case of need;
(c) make higher education accessible to all on the basis of capacity by every
(d) make educational and vocational information and guidance available and
(e) take measures to encourage regular attendance at schools and the reduction
State parties shall take all appropriate measures to ensure that school
discipline is administered in a manner consistent with the child's human dignity
and in conformity with the present convention. State parties shall promote and
encourage international cooperation in matters relating to education, in
particular with a view to contributing to the elimination of ignorance and
illiteracy throughout the world and facilitating access to scientific and technical
53 Decided on on 7 November, 2007 available at Indian Kanoon - http://indiankanoon.org/doc
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knowledge and modern teaching methods in this regard. Particular account
shall be taken of the needs of developing countries.
In R. D. Upadhya v. State of A.P.54 court held that the right to
education attaches to the individual as an inalienable human rights the court
must provide education to all children in all place, even in prisons, to the
In Election Commission of India v. St. Mary’s School55 court held that
education remains essential to the life of the individual, as much as health and
dignity, and the State must provide it, comprehensively and completely, in
order to satisfy its highest duty to citizens.
In Ashoka Kumar Thakur v. Union of India56 court observed that it is
become a necessary that the Government set a realistic target which in must
fully implement Article 21-A regarding free and compulsory education for the
entire country. The Government should suitably revise budget allocations for
education. The priorities have to be set correctly. The most important
fundamental rights may be Article 21-A, which, in the larger interest of the
nation, must be fully implemented. Without Article 21- A the other
fundamental rights are effectively rendered meaningless. Education stands
above other rights, as one’s ability to enforce one’s fundamental rights flows
from one’s education. This is ultimately why the judiciary must oversee the
Government spending on free and compulsory education.
In Court on Its Own Motion vs. Govt of Nct of Delhi57 Hon’ble the
chief justice Hon’ble Mr. Justice Manmohan held that today’s children
constitute tomorrow’s future. To ensure a bright future of our children, we have
to ensure that they are educated and not exploited. In fact, children are the most
vulnerable members of any society. They are entitled to special care and
57 Date of Decision: July 15, 2009 available at Indian Kanoon - http://indiankanoon.org/doc
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assistance because of their physical and mental immaturity. The problem is
more complicated in developing countries like ours, where child labour exists
in relationship with illiteracy and poverty.
To eliminate the menace of child labour and to effectuate the mandate of
Articles 23, 24, 39, 45 and 47 of the Constitution, Supreme Court had given a
large number of mandatory directions in “M.C. Mehta v. State of Tamil Nadu
reported in AIR 1997 SC 699”. One of the important directions was to direct an
employer to pay a compensation of Rs.20,000/- for having employed a child
below the age of 14 years in hazardous work in contravention of Child Labour
(Prohibition & Regulation) Act, 1986 (hereinafter referred to as CLPRA,
1986). The appropriate Government was also directed to contribute a
grant/deposit of Rs.5, 000/- for each such child employed in a hazardous job.
The said sum of Rs.25,000/- was to be deposited in a fund to be known as
Child Labour Rehabilitation-cum- Welfare Fund and the income from such
corpus was to be used for rehabilitation of the rescued child.
As the constitutional mandate and statutory provisions with regard to
children were not being vigorously implemented and there was lack of
coordination between different agencies of the Government of NCT of Delhi
and other authorities, this Court, vide a detailed order dated 24th September,
2008 directed the National Commission for Protection of Child Rights, to
formulate a detailed Action Plan for strict enforcement and implementation of
CLPRA, 1986 and other related legislations. The National Commission was
directed to suggest measures regarding education, health and financial support
to the rescued children. The National Commission was also directed to suggest
measures for timely recovery and proper utilization of funds collected under
the Supreme Courts direction in the aforesaid M.C. Mehta's case.
The National Commission after holding consultation with various
stakeholders and after conducting research and survey submitted to this Court a
Delhi Action Plan for Total Abolition of Child Labour. According to the
National Commission, the child labour profile in Delhi is of two types namely,
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out-of-school children living with their parents in Delhi and migrant children
from other states who have left their family behind.
The Action Plan for Total Abolition of Child Labour is based on two
strategies. The first strategy is an Area Based Approach' for elimination of
child labour, wherein all children in the age group of 6 to 14 years would be
covered whether they are in school or out-of-school. The National Commission
has proposed that this approach be initiated as a Pilot Project in North-West
District of Delhi. The second strategy is an approach to be adopted in the
context of migrant child labour. It involves a process of identification, rescue,
repatriation and rehabilitation of child labour. This strategy is proposed to be
implemented as a Pilot Project in South Delhi District.
To conclude, we would only quote what Dr. Dorothy I. Height, a social
activist, has said, “We have got to work to save our children and do it with full
respect for the fact that if we do not, no one else is going to do it.”
Consequently, we accept the Delhi Action Plan which provides a detailed
procedure for interim care and protection of the rescued children to be followed
by Labour Department as prepared by the National Commission with the
modifications mentioned hereinabove in paras 20 to 26 further direct all the
authorities concerned to immediately implement the same. The Government of
NCT of Delhi through the Labour Department is directed to file its First Taken
Report to this Court after six months. For this purpose, list the present batch of
matters on 13th January, 2010.
In the Sanjay Kumar Agarwal vs. The State of Jharkhand & Anr.58
case under the cognizance of the offence under section 14 of the Child Labour
(Prohibition and Regulation) Act. It appears that an official complaint was
filed in the court of learned Chief Judicial Magistrate, Dhanbad by the Labour
Superintendent, Dhanbad alleging therein that on 25.2.2005 at about 2.20 p.m.
58 Decided on 17 July, 2009 Cr.M.P. No. 1080 of 2005 available at Indian Kanoon -
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the Brick-kiln of the petitioner, namely, M/S. G.K.A. Itta Bhatta was inspected
by the Labour Superintendent as per the provisions of the Act and found that in
the aforesaid Brick-kiln one child labour, namely, Lalan Manjhi, was present. It
is stated that the working of a child labour in Brick-kiln is contravention of
section 3 of the Act. It is also stated that as per Rules framed under the Act, the
register and notice board was not maintained by the establishment. It is also
alleged that the Labour Inspector was also not given any notice regarding the
employment of child labour. It is stated that after the inspection, show cause
notice was given to the petitioner for removing the defect and also for
production of papers and registers for inspection, but the petitioner has not
complied the direction given in the said show cause notice and his reply is
unsatisfactory. Accordingly the present complaint was filed in the court of CJM
with request to take cognizance of the offence under section 14 of the Act.
It appears that learned CJM, Dhanbad vide order dated 4.7.2005 took
cognizance of the offence under section 14 of the Act against that the present
application has been filed. It is submitted that in response to the show cause
notice the petitioner filed a show cause, wherein he had stated that the said
child labour, namely, Lalan Manjhi, was not working in his Brick-kiln. It is
stated that the said child labour is the brother-in-law of one Lito Manjhi, who is
working in his Brick-kiln and the said Lalan Manjhi was residing with him. It
is further stated that father of Lalan Manjhi and said Lito Manjhi had sworn an
affidavit that Lalan Manjhi is residing with Lito Manjhi and not working in
brick-kiln. It is also submitted that the said Lalan Manjhi was a student of
Siksha Abhiyan Vidaylaya , Bathanbari, Nirsa. It is submitted that in proof of
aforesaid contention, a certificate issued by Siksha Mitra of the school and also
the result of the said Lalan Manjhi has been filed for perusal of this Court. It is
also submitted that from the perusal of aforesaid document, it is clear that the
said Lalan Manjhi was not working in the Brick-kiln of the petitioner and
therefore the inspection report of the concerned Labour Superintendent is
against the facts of the case. Accordingly, it is submitted that in view of the
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documents submitted by the petitioner, no offence under section 14 of the Act
is made out. Accordingly, it is submitted that the order taking cognizance is
On the other hand, learned Additional P.P. opposed the prayer of
petitioner and submits that while exercising the jurisdiction under section 482
of the Cr.P.C., it is not open for this court to make an enquiry and take into
consideration the defence of the accused for coming to the conclusion that the
offence is made under section 14 of the Act is made out. Therefore, the court
has rightly taken cognizance against the accused petitioner which does not
require any interference by this Court. 3 Having heard the submission, I have
gone through the record of the case. From perusal of the complaint Petition, I
find that the Labour Superintendent has inspected the Brick-kiln of the
petitioner and found that a child labour, namely, Lalan Manjhi, was working
there. It further appears that as per the provisions of the Act and Rule, the
petitioner has not maintained the notice board as well as the register. It is not in
dispute that working of a child labour in a Brick-kiln is prohibited under
section 3 of the aforesaid Act. It is stated in the complaint petition that the
show cause filed by the petitioner is not satisfactory and therefore the present
complaint has been filed. After going through the complaint petition, I find that
if allegation made therein remains un-rebutted then a case under section 14 of
the Act is made out against petitioner. Submission of learned counsel for the
petitioner, to the effect that affidavit filed by the father and brother-in-law of
Lalan Manjhi and also the certificate given by Siksha Mitra of Siksha Abhiyan
Vidaylaya, Bathanbari, Nirsa show that aforesaid Lalan Manjhi was not
working in the Brick-kiln, cannot be accepted at this stage..
It has been held by their Lordships of Supreme Court in M. Narayan Das
V. State of Karnataka (2003)11SCC251 that "it is settled law that the power to
quash must be exercised very sparingly and with circumspection. It must be
exercised in the rarest of rare case. It is also settled law that the court would not
be justified in embarking upon an enquiry as to the reliability or genuineness or
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otherwise of the allegations made in the FIR. The Court also cannot enquire
whether the allegation in the complaint are likely to be established or not".
Thus, in view of the aforesaid law laid down by their Lordships of
Supreme Court while exercising power under section 482 of the Cr.P.C., it is
not open for this Court to consider defence of accused and come to the
conclusion that no offence is made out. It is well settled that from the materials,
made available by the prosecution, if the court come to the conclusion that
prima facie offence is made out, then the court is justified in taking cognizance
of the offence. 4 As noticed above, from the facts stated in the complaint
petition, prima-facie an offence under section 14 of the Act is made out. Thus, I
am of the view that learned C.J.M., Dhanbad had rightly taken cognizance of
the offence and issued process against the petitioner. Thus in view of the
discussion made above, I find no illegality and/or irregularity in the impugned
order. In the result, I find no merit in this application, the same is accordingly
In latest case Avinash Mehrotra v. Union of India and others 59 the
court held that education remains essential to the life of the individual, as much
as health and dignity, and the State must provide it, compressively and
complicity, in order to satisfy its highest duty to citizens. Education a child
requires more than a teacher and a blackboard, or classroom and a book. The
right to education requires that a child study in a quality school, and a quality
school certainly should pose no threat to a child safety. The Constitution
likewise provides meaning to the word “education” beyond its dictionary
meaning. Parents should not be compelled to send their children to dangerous
schools, nor should children suffer compulsory education in unsound buildings.
Likewise, the State’s reciprocal duty to parents being with the provision of a
free education, and it extends to the State’s regulatory power. No matter where
a family seeks to education its children, the State must ensure that children
suffer no harm in exercising their fundamental rights and civic duty. State thus
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bears the additional burden of regulation, ensuring that school provides safe
facilities as a part of a compulsory education.
In Mamta Kumari & Ors vs. State Of Raj. & Ors.60 “Sarva Shiksha
Abhiyan”, S.S.A. an ambitious and flagship Project launched by the
Government of India for achievement of Universalization of Elementary
Education (UEE) within the time frame as mandated by the 86th Amendment
to the Constitution making free and compulsory education to the children of 6-
14 years of age group a fundamental right under the Constitution of India. The
said Project SSA is being implemented in partnership with the State
Governments of the Country to address the need of about 192 million children
and the programme seeks to open new schools for those habitants, who do not
have school facilities and strengthen the present school system through
provisions of rooms, toilets, drinking water maintenance, improvement in the
existing schools with inadequate teacher strength are to be provided with
additional teachers adding capacity to the existing teachers and the capacity of
teaching method is being strengthened by extensive training. The said Project
of SSA seeks to provide quality elementary education with special focus to
girls’ education and children with special needs.
But ground reality Right to education a challenge for education
department, UP needs 7000 more schools, 90,000 additional class teachers and
four lakh teacher if the state wanted all its children to study up to senior
secondary levels. Not only this, the uphill task also involves a recurring grant
of 13,000 crore per annum for five years, besides a non-recurring grant 4,000
crore. The facts came to light at the state-level consultation to understand the
implications and work out strategy to implement the Right to Education Bill in
UP. Organised jointly by an arm of department of education ‘Sarva Shiksha
Abhiyan’ and Unicef, the workshop was attended by all stake holders,
60 Decided on 25 August, 2010 available at Indian Kanoon - http://indiankanoon.org/doc
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including government, representatives and officers of the education
IV. GOVERNMENT POLICY AND SCHEME IN INDIA
Under the child labour policy of 1987, the arrangement has been done to
Save the children from exploitation, their education, medical treatment, means
of recreation and emphasis on general development programmes. Besides this,
in Five Year Plans also, the Government of India has begun many particular
projects like rehabilitation for up liftmen of child labours, informal education,
professional training supplementary nutritional diet, and health care, etc.
Besides the Government many non-government voluntary organizations
are apt for the welfare of child labours. U.N.I.C.E.F. International agencies and
government of India help these organizations. In this direction, Mr.
Vekatchelaia Foundation Ruchika Samaj Sevak Sangh and volunteer child
welfare organizations like Vivekananda Sikh Society have contributed for
eradication of child labour and development of children engaged in industrial,
urban and rural areas, Unfortunately, despite of these, Government and Non-
Government methods and efforts, the stigma of child labour has not been
topped. A national Authority for Elimination of Child Labour (NAECL) has
been constituted for elimination of child labour in hazardous industries by
2000.At present about 2 million child labourer are estimated to be employed in
hazardous industries and substantial resources.
Over 1050 child labourers employed in various industries in 12 states I
the country participated in a National Convention on Child Labour held in the
month of December 1994 in Madras. They demanded compulsory education
for all children. They said they were forced to work, as their parents were
unable to find jobs and wanted free textbooks, uniform and food so that their
parents would willingly send them to schools. Children called for a public
awareness campaign against child labour so that parents would know that
sending children to work was illegal.62
61 The Times of India, Lucknow, December 9, 2009
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The ministry of labour and Employment has been implementing the
NCLP though the establishment of National Child Labour Projects (NCLPS)
for the rehabilitation of child workers since 1988. Initially, the projects were
industry specific and aimed at rehabilitating children working in traditional
child labour endemic industries but it was enlarged in 1994 and included
rehabilitation of children working in hazardous occupations in child labour
The strategy for the NCLPS includes the establishment of special
schools to provide non-formal education and pre-vocational skills training;
promoting additional income and employment generation opportunities; raising
public awareness, and conducting surveys and evaluations of child labour.
The experience gained by the Government in running the NCLPS over
several years resulted in the continuation and expansion of the projects during
the Ninth Five-Year plan (1997/02) Around 100 NCLPS were launched across
the country to rehabilitate children working in hazardous industries such as
glass and bangles, The Central Government made a budgetary allocation of Rs.
2.5 billion (about US$57 million) for these projects during the Ninth Five-Year
plan. The Government of India has committed to expand the coverage of the
NCLPS to an additional 150 districts and increase the budgetary allocation to
over 6 billion (about US$ 131 MILLION) during the Tenth Five-Year plan.
A number of National institutions such as the V.V. Giri National Labour
Institute and the national institute of Rural Development and some State label
institutes have played an important role in the area of training and capacity
building of Government functionaries, factory inspectors and officials do
India child labour Act, first passed in 1986 already banned from
working in factories, mines, and other perilous jobs. However, the latest move
to stop child labour in India is a new law banning children under 14 from
62 Child Labour- Taking the Problem-by Raghvendra Singh Raghuvanshi.
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working in homes or Restaurants. The Act now carries two more in a list of 57
professions deemed “Hazardous” for children.63
1) The National Child Labour Policy, 1987:
Increase attention is now being paid to strengthening the enforcement
machinery related to child labour. Soon after the enactment of the
comprehensive Child Labour (Prohibition &Regulation) Act, 1986, the
Government of India adopted a National Child Labour Policy in 1987, in
accordance with the constitutional Provisions and various legislations on Child
Labour. The idea of adopting a separate policy on child labour was not only to
place the issue on the nation’s agenda, but also to formulate a specific program
of action to initiate the process of progressive elimination of child labour. The
policy consists of three complimentary measures:
Legal Action Plan: This policy envisages strict enforcement of the
provisions of the Child Labour (Prohibition &Regulation) Act, 1986 and other
Focus On General Development Programs Benefiting Children
wherever Possible: The policy envisages the development of an extensive
system of non-formal education for working children withdrawn from work
and increasing the provision for employment and income generating schemes
meant for their parents. A special cell - Child Labour Cell - was constituted to
encourage voluntary organizations to take up activities like non-formal
education, vocational training, and provisions of health care, nutrition and
education for working children.
Area Specific Projects: To focus on area known to have high
concentration of child labour and to adopt a project approach for identification,
withdrawal and rehabilitation of working children.64
2) Scheme of National Child Labour Project Revised 2003 Policy:
63 Available at www.indianamebassy.org/policy/Child_Labour/National_Policy_Child_Labour.htm
64 Labour.nic.in/cwl/Child Labour.htm
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The National Child Labour Policy was approved by the Cabinet on 14
August 1987 during the Seventh Five Year plan period. The policy was
formulated with the basic objectives of suitably rehabilitating the children
withdrawn from employment thereby reducing the incidence of child labour in
areas of known concentration of child labour. The policy consists of three
i) Legal Action Plan- With emphasis laid do strict and effective enforcement
of legal provisions relating to child labour under various labour laws;
ii) Focusing of General Development Programs- Utilization of various
ongoing development programs of other ministries or Department for the
benefit of child labour wherever possible;
iii) Project based plan of Action- Launching of projects for the welfare of
working children in areas of high concentration of child labour.65
3) Central Advisory Board on Child Labour
The Central Advisory Board on Child Labour was constituted on March 4,
1981. The following are terms of reference of the board:
Revised the implementation of the existing legislation administered by
the central government.
Suggest legislative measures as well as welfare measures for the welfare
Review the progress of welfare measures for working children.
Recommend the industries and areas where there must be a progressive
elimination of child labour.66
4) Child Labour Technical Advisory Committee:
Under Section 5 of the child labour (P&R) Act, 1986, the Government of
India is empowered to constitute a child labour Technical Advisory Committee
for the purpose of addition of occupation and processes in the schedule to the
Act. The committee consists of a chairman and members not exceeding ten. The
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committee has been reconstituted on February 5, 1996 under the chairmanship of
Director General of Indian Council of Medical Research.67
5) National Child Labour Project (NCLP)
Under the action plan of the national policy on Child Labour, there has
been national child labour projects set up in different areas it rehabilitate child
labour. A major activity undertaken under the NCLP is the establishment of
special schools to provide no formal education, vocational training
supplementary nutrition etc.68
6) Strategy to be adopted during the 10th plan for Elimination of Child
Focused and rain forced action to elimination child labour in the
hazardous Occupations by the end of plan period.
Explanation of the NCLPs to additional 150 districts during the plan.
Ensuring that the NCLPs have a focused time farm of five years with
Linking the child labour elimination efforts with the scheme of Sarve
Shiksha Abhiyan of the MHRD an attempt to ensure that small children in
the age group of 5-8 years get directly linked to school and the older
children are mainstreamed to the formal education system through the
rehabilitation centers and increasing efforts to provide vocational training
Strengthening of the formal school mechanism in the endemic child
labour areas in the country both in terms of quality and numbers in such a
manner as to provide an attractive schooling system to the child labour
force and its parents so that motivational levels of both the parents and
such children are high and sending these children to school becomes an
Effective provision for health care for all children would be made.
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Implementation of the child labour (P&R) Act, 1986 would be made much
The monitoring system would be further systematized with the close
involvement of the State Government to ensure that the project is able to
attain its objectives within the period.
Equal important would pay to the aspect of continuous awareness
generation though print, folk and electronic media. Requisite training and
sensitization of workshops would be conducted for officials at all levels.
The task of elimination of child labour be placed on the top of the nation’s
agenda and given a “Mission Mode”.
Convergence with the ongoing schemes of the Dept. of Education, Rural
Development, Health and women and child development would be critical
The ultimate attainment of the objective of elimination of child labour in
Large scale involvement of the voluntary organizations at the district level
and to them assist in the running of the NCLP schools.69
7) Measures to deal with Child Labour –Strategy for the 11th plan
The NCLP Scheme, which began with a modest number of only 12
districts, has been progressively expanded to various parts of the country with a
major trust in the 10th plan, when it was expanded to cover 150 districts, spread
over in20 states of the country. In addition, Indus project, which is a joint Indo-
US child labour project for rehabilitation of children, is being implemented in
21 districts of the country. The project would be ending in August, 2007 and
therefore these districts would also need to be takeover under the NCLP
Scheme thereafter. There have been demands from various States for
expanding the coverage of the NCLP Scheme to more districts. Some State like
Orissa and Bihar has proposed for coverage of the entire State under the
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scheme. To target every working child engaged in hazardous occupation in the
country, which is the immediate objective of the Government, there is
therefore, a need to expand the scheme to all the districts in the country. The
central Monitoring Committee (CMC) on Child Labour also recommended this
in its last meeting minutes of the CMC meeting given as. Hence, all other
remaining districts having a reasonable number of working children in the
hazardous category would have to be covered under the NCLP Scheme during
REVISION OF NCLP Scheme
The NCLP Scheme, within the broad guidelines, provides flexibility in
implementing the scheme at the field level. Various innovations and initiative
are therefore, being tried under the scheme in different states as per their
specific requirements. Some of the successful practices and recommendations
of the working group regarding revision of the scheme for the 11th plan are as
i) Child Labour Survey: - To have a correct estimate of child labour in the
country, there is an immediate need for child labour survey in all the districts of
the country. This is important since the last countrywide enumeration of the
working children was held in 2001 Census and the incidence of child labour
may have undergone change since then with population growth and the large-
scale migration of workforce.71
ii) Standard Curriculum and Learning Materials: - Experience of
implementing the NCLP Scheme has shown that those states, which have
developed a standard curriculum for teaching children in the special schools,
have and much better results in mainstreaming and retention of children as it
helps in their smooth transition to regular schools. Therefore, there is a need to
develop an improved and standardized curriculum to provide basic education in
the special school. The specific recommendations in this regard are:
70 Available at www.indianamebassy.org/policy/Child_Labour/National_policy_Child_Labour.htm
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State Governments to develop a standard curriculum to be adopted in all
the special schools in the state of providing uniformity and linkage with
The content of curriculum developed should be in consonance with the
curriculum followed by the regular schools for ensuring smooth
State education departments and the curriculum and text-book
development agencies are asked to develop new bridging modules or
adopt the once developed under SSA for this target group.
The proposal does not have any financial implication, as it would be using
the SSA set up. However, if there is any additional requirement, then a separate
allocation will be made to the concerned state governments.72
iii) Teachers Training: - To make learning a joyful and enriching experience
for the children, it is essential that the teachers are well trained and geared up to
take this challenge. These teachers have a major responsibility of nurturing
these children and developing confidence in then to join the mainstream
iv) Comprehensive Pre-Vocational Training:- In India, child labour is not
only the means of supplement the family income, but is also perceived as the
way of acquiring skills and learning the job which will be useful for the child to
earn livelihood later in his life. As the Families of child workers are living in
object poverty, they are often not able to appreciate the need for education for
the overall development of the child, and also due to various other socio-
economic reasons and attitudes, young children are employed in wide range of
jobs including hazardous and dangerous occupations. On the one hand, while
the public elementary education in India does not provide the necessary
opportunities for skill development, access to vocational training otherwise is
also not easy. it is in this context that vocational training has been provided as
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an important component in the National Child Labour Project Scheme.
Vocational Training to the children would also help in development of their
extracurricular activities. The specific recommendations in this regard are as
The pre-vocational; skills being imparted in NCLP schools should be
upgraded to unable the children withdrawn from work to be equipped to
retain traditional skills with an added emphasis on theory as one of the
Labour market survey to be conducted in each district to assess the
skills, which has marketability.
Regular training of the vocational teachers of the special schools
through the ITIs and other vocational training institutes in the district.
Document the successful pre-vocational training modules in some of the
NCLP districts and offer them to other districts for replication.
The financial implication for training vocational instructors twice during the
11th plan works out to Rs. 5.4 crores.
(v) Strengthen Health Component: - Provision of health care to child
workers in the special schools would help in timely detection of ailments and
their treatment. In this regard, the specific recommendations are as follows:-
Provisions of a health kit with first aid essentials and few basic medicines for
the children of the special schools. Flexibility in Utilizing honorarium for
doctors in the special schools either on a monthly or per visit basis. In case of
Government doctors, the flexibility should be there to utilize the funds allotted
for this purpose for their transportation to visit special schools.
Emphasis should be on convergence with the local government
hospitals, dispensaries or PHCs to provide health care facilities medical camps
and also preventive health education. Health cards for each child must be
maintained in each school and the observations of the doctor recorded thereon.
The financial implication of appointing doctors for every 20 schools.
And first aid kit with basic medicines works out to Rs. 54 crores. The provision
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of the doctor for every 20 schools already there in the 10th plan under the
(vi) Uniform & School Bag:- Provision of school uniform to children in
NCLP schools is essential for inculcating discipline as well as raising self-
esteem sees of non-discrimination amongst these children, who are coming
from the economically deprived sections of the society. This demand came
from various states and NGOs and has also been recommended in the last
meeting of the central monitoring committee. It is therefore, proposed that, in
the 11th plan a provision be made for at least two sets of uniform with a pair of
shoes and a school bag every year for each child covered under the scheme.
Financial implication Rs500 per child per year work out to Rs.225 crores for
(vii) Provision of Computer and Printer: - With increasing use of
computers in all the fields, and their effectiveness, they are essential for every
office. More so in NCLP project office so s to help in effective tracking &
monitoring of the children, better supervision as various activities under the
project and finally record keeping and reporting through the net.75
(viii) Economic Rehabilitation and Sensitization of the Parents: - As
poverty and illiteracy are the prime reasons of child labour, a combined and
Coordinated efforts of the various departments would greatly help to mitigate
this problem. Providing income opportunities to the parents of these children
would enable them to send their children to school rather than work. This
aspect has been clearly recognized even in the National Policy on Child
Labour, which prescreened to focus on general development programmes for
the benefit of the families of child labour. But the parents need to be sensitized
about all these progammes to enable them to take any benefit from them. In
this regard, formation of the SHGs of the parents of the working children is
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A concerted effort also needs to be made to continuously convince
parents the importance of education and the deleterious, long term effects of
children working. This would also help to bring children from these families in
(ix) Strong Linkages with Education Department: - Convergence with
Education Department on a sustained basis is required for the following:-
Correct identification of the child labour under the survey from the information
pertaining to out of school children collected under SSA.
To ensure that the working children identified in the age group of 5-8
years are overfed directly under SSA. One of the formal schools in the year to
be identifying as a lead school for the mainstreaming if the children coming out
of the special schools in that area. Specific instructions to be issued by the
Education Department to the lead schools for smooth mainstreaming. To
ensure timely supply of textbooks and bridging material for children in NCLP
School by the Education Department, assistance in developing curriculum for
Training of teachers in NCLP Schools as specific components under the SSA.
Monitoring of special schools through the village or block level Education
Committee under SSA to ensure that no child in the area remains out of school.
Sensitizing the district education administrative setup, SSA Planning teams
and school headmasters or teachers or VEC members about child labour issues
& the specific needs of these hildren.77
(x) Enhancement of Honorarium: - There is a strong & persistent demand
for revision of honorarium of the NCLP staff and the school functionaries.
Considering the rate of inflation sine 2001, when the last revision of
honorarium was carried out under the Scheme, approximately 25% increase is
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(xi) Enhancement of Rent, etc:- There has been demand for raising the
rentals for special schools in the big cities ,as NGOs have been facing difficulty
in hiring suitable accommodation for this purpose in the existing budget of Rs.
(xi) Residential Facility for Migrant Children: - Children from the
economically backward areas of Bihar, UP, West Bengal and Other states are
migrating to the metropolitan cities of Delhi, Mumbai & Bengal rein search of
employment. Various raids undated by the labour Department in these cities
have revealed that these children are working in most pitiable conditions. They
are living in their work places, as they have no regular shelter. They work for
long hours and are provided with maser wages. These children have no security
in terms of their family or community and are, therefore, in a highly vulnerable
(xiii) Awareness Generations: - So for, the communication approach followed
under the NCLP Scheme has been to undertake awareness generation exercise
at the local/district level. A provision of Rs.1.25 lakhs per year was made in the
budget for every NCLP for this purpose. The activities undertaken in this
regard consisted of exhibitions, fairs, rallies, street players, camps, meetings
and workshop etc. On the child labour in the district being localized, these
activities had a very limited impact and the need has been felt to carry out
media campaign at the national level, particularly since the incidence of child
labour is quit wide spread in the country. Even the state has been demanding
funds for carrying out state level campaign on the issue.
To invoke public interest and large scale awareness on this issue, there
is need for an extensive awareness generation campaign launched over a
period of time at the center and start on a sustained basis keeping this in mind a
provision of at least Rs. 50 crore is to be kept aside in the ministry’s budget in
the eleven plan undertaking national level media campaign on the subject
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Recognizing this need and initial provision of Rs.5 crore has been made in the
ministry’s budget in the current year for this purpose .81
(xiv) Enforcement: - Strict enforcement measures are most essential to deter
employers from employing children. Effective rehabilitation measures
therefore, must be supplemented with strong enforcement measures to prevent
further entry of children into the workforce-Special Task forces against Child
Labour must be set up in all the district to carry out raids and inspection to
initial and element of deterrence among the offenders . 82
(xv) Tracking & Monitoring of Child Labour :- Tracking is an important
tool to beneficiary right from the time of his /her identification as child labour
in the survey to his / her enrolment in the special schools through this /her stay
therein and up the ministering. In fact these monitoring needs to be continued
even beyond mainstreaming to gathering if the child is continuing with has /her
studies in the regular schools or has dropped out. Once a child is rehabilitation
under the project it is an important follow up step to check is s/he is siring well
in the mainstream school. Such a monitoring would ensure that the child does
not relapse back to exploitation work. A well-designed T& M system therefore
bold ensure that the beneficiary has been effectively rehabilitated. An effective
we-based monitoring bold also benefit in keeping track of migrant child labour
from one NCLP district to another and would help in continue of their
schooling and rehabilitation in spite of their movement. This project of tracking
&monitoring is, important in deterring the real success of the project in terms
of children’s actual mainstreaming and continuation in school thereafter.
V. STEPS TAKEN BY NATIONAL HUMAN RIGHTS
COMMISSION AND COMMISSION FOR THE RIGHTS OF
The NHRC is deeply concerned about the employment of child Labour
in the Country. The Commission has observed that even after sixty years of
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independence, Child Labour persists in the country. Despite various
Constitutional Provisions, announcement of a National Child Labour Policy.
Freeing the estimated two million children working in hazardous industries.
Hence the Commission focused its attention on the following industries
wherefrom rampant reports of child labour were received. These include:-
Bengal or Glass Industry, Silk Industry, Lock Industry, Stone Quarries, Brick
Kiln, Diamonds Cutting, Ship Breaking, Construction Work, Carpet Weaving
The national Human Rights Commission has expressed the unequivocal
view that the problem of child labour will persist until the free compulsory
education for all up to the age of 14 years realized. It has further observed that
despite the provision of Art. 45 & 21-A of the Indian Constitution the grim
reality is that today the number of illiterates in the country exceeds the entire
population of the country at the time of independence. For making primary
education compulsory, there is need for strong political will. 83 The
commission took up several cases and gave guidelines in support of his
concern. Some of these cases are given as under:-
1) Death of a 12 years old Child Worker, Naushad: Bangalore (Case No.
An NGO of Bangalore , Maya(Movement for Alternatives and Youth
Awareness), made a complaint to the commission saying that a 12 years
old child worker had died in the Silk Filature Unit Premises in
Ramanagaram town on 14 November 2000 having suffered 79 percent
burns , sustained in the unit.
The Commission has been monitoring the progress in respect of the cases
that are in court. In addition, after considering the inquiry report submitted
against t5he doctors, the commission directed the government of Karnataka to
inform it of the action taken by the disciplinary authority on the report of the
83 “ Know YourRight” on Child Labour National Human Rights Commission.
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2) Bonded Child Labour: Andhra Pradesh (Case No. 443/1/2001-2002)
The Commission received a petition dated 24 August 2001 alleging child
labour and the exploitation of minor girls by employing them in hazardous
work in cottonseed farms, tiles, units, queries and beedi manufacturing units
in the districts of Mehboob Nagar, Krishna and Nizamabad in Andhra
In response of directions issued by it on 15 October 2001, The
Commission received a detailed report dated, 19 July 2002, from the
Government of Andhra Pradesh. It stated, in essence, that the Government was
implementing an action plan to eradicate child labour in the State by the year
2004 in a time bound manner. The commission then obtained the comments of
Shri K.R. Venugopal, its special reporter, on the child labour situation in
On 10 March 2003, the commission considered the report and the
comments of the Special Reporter. It proceeded to ask the State Government to
forward a copy of its plan to the Commission along with the details of the
follow-up steps taken by the State Government based on that action plan. The
matter remains under the consideration of the Commission, as the issue of child
and bonded labour being of utmost importance to it.
3) Exploitation of Children by the great Roman Circus in Gonda District of
Uttar Pradesh ( Case No. 7993/24/2004-2005)
The Commission received a complaint, dated 15 June 2004 from the
general Secretary, Global March against Child Labour , New Delhi an NGO,
alleging assault on its members and parents of children during investigation of
alleged atrocities on children including sexual harassment at Great Roman
Circus in Golneloganj, District Gonda, U.P.
The Commission got the matter investigated through its team of officers
and also obtained a report from the chief-secretary, State of U.P. In response to
the notice issued to the Government of Uttar Pradesh, the State Government
84 Available at Nhrc.nic.in/Child Cases.htm
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informed that three criminal cases- one under section
147/148/325/323/352/504/506/107 of IPC and section 3and 5 of the Bonded
Labour Act, 1976 had been registered against the owner of the circus and other
persons; the other under section 376 IPC was registered against Raza Mohd.,
owner of the Circus in respect of alleged rape by him on Kumari Neeta Lama.A
third case under section 354 IPC was also registered against unknown persons.
Apart from Neeta Lama, no other exploitation
The commission vide its proceedings dated 9 February 2005, directed sp
(hr) in the office of DGP, U.P. , to send a copy of the writ petition pending
before the High Court at Allahabad together with any order made therein . The
Today the Human Rights Commission and State Human Rights
Commission carry a torch of human rights from the concept to realization in
India. The vision of the Commission is to have a smile on every face. It has the
mission to serve the humanity without any hidden interest.
4) NHRC raps Karnataka Govt. on child labour in Bellary mines:
National Human Rights Commission has taken strong exception to
“faulty investigation” vis-a-vis violation of child labour laws in mines in
Karnataka's Bellary district leading to large-scale acquittals.
At a two-day regional meeting with the southern states of Kerala,
Karnataka, Andhra Pradesh and Tamil Nadu - which concluded in Bangalore
today - the NHRC, rejected the state's claim that there is no child labour
At a two-day regional meeting with the southern states of Kerala,
Karnataka, Andhra Pradesh and Tamil Nadu - which concluded in Bangalore
today - the NHRC rejected the state's claim that there is no child labour involve
The Commission recommended monetary relief to the tune of Rs19.8 lakh in
nine cases from the four states and disposed of 22 cases. On the case relating to
a custodial death in Karnataka, the Commission held that it occurred due to
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police negligence, and awarded an interim relief of Rs3 lakh to the next of kin
of the deceased Srinivas, from Kolar Need in Bellary mines.86
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