CASE COMMENT:- A critique of Deelip Singh v. State of Bihar, AIR 2005 SC 203.

rapeBENCH:- Division Bench (Supreme Court)

  1. P. Venkatarama Reddi ,J
  2. P.P. Naolekar, J

FACTS OF THE CASE:- The victim girl lodged a complaint to the police on 29.11.1988 i.e., long after the alleged act of rape against the appellant here. By the date of report she was pregnant by six months. The victim girl alleged that she and accused were neighbours and fell in love with each other and one day, the accused forcibly raped her and later consoled her saying that he would marry her, that she succumbed to the entreaties of the accused to have sexual relations with him, on account of the promise made by him to marry her and therefore she continued to have sex with him on several occasions. After she became pregnant, she revealed the matter to her parents. Even then the intimacy continued to the knowledge of the parents and other relations who were under the impression that the accused would marry the girl but the accused avoided to marry her and his father took him out of the village to thwart the bid to marry. The efforts made by the father to establish the marital tie failed and therefore she filed complaint after waiting for some time.

With the help of the evidences adduced in the form of school certificate and medical expert’s opinion regarding the age of the victim, prosecution established that by the date of commission of the crime the victim was aged less than 16 years in which case her consent becomes immaterial. The trial Court accepted the arguments of the prosecution and found that the girl was aged less than 16 years at the relevant point of time. The trial court held that it was case of having sexual intercourse against the will of the victim girl or without her consent. If so, irrespective of the age of the girl, the offence is deemed to be committed. Trial Court convicted the appellant here under Section 376 IPC for committing rape of a minor girl, and sent him to rigorous imprisonment for a period of ten years. `The High Court upheld the conviction but modified the sentence to seven years.

LAW:- The principle laws in question in this appeal are, sections 90, 375 & 376 of IPC.

Section 90:- Consent known to be given under fear or misconception:- A consent is not such a consent as it intended by any section of this code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has a reason to believe, that the consent was given in consequence of such fear or misconception; or    Consent of insane person:- if the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or      Consent of child:- unless the contrary appears from the context, if the consent is given by a person who is under twelve years of age.

“Section 375[1]: A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following descriptions:-

Firstly- Against her will.

Secondly, – Without her consent.

Thirdly-   With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

Fourthly- With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

Fifthly – With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

Sixthly – With or without her consent, when she is under sixteen years of age.

Explanation- Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

Exception- Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape”.

Section 376[2]:- (1) Whoever, except in the cases provided for by subsection (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:

Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven years.

ISSUES:-

The following issues were addressed by the Supreme Court in this case:-

  1. Was the victim girl less than 16 years of age on the date of the first sexual intercourse which the appellant had committed?
  2. Whether the appellant had sexual intercourse with the victim girl against her will, and is guilty under the clause first of section 375?
  3. Whether the appellant had sexual intercourse with the victim girl without her consent, and is guilty under the clause secondly of section 375?
  4. Can sexual intercourse consent to which has been obtained by making a false promise of marriage, be rape within the meaning of Section 375 of the Indian Penal Code, 1860?

JUDGEMENT:-

The Supreme Court on re-appreciation of the evidences found that neither was the victim girl a minor at the relevant time nor did the appellant have sexual intercourse with the prosecutrix ‘against her will’. The charge of rape was then sought to be pressed against the appellant on the ground that he had obtained consent to sexual intercourse by making a false promise of marriage and such a consent, covered by the expression “misconception of fact”, is vitiated by Section 90. The Supreme Court, accepting this contention, ruled that a false promise of marriage is covered by the expression “misconception of fact” and a consent thus obtained is vitiated by Section 90; accordingly, it was held that sexual intercourse, consent to which is obtained by making a false promise of marriage, is rape within the meaning of Section 375 of I.PC. However, in the instant, the SC found it to be a case of breach of promise and not false promise and acquitted the appellant of the charge of rape under Section 376 of the I.P.C. Appellant paid a sum of Rs. 50,000 by way of monetary compensation irrespective of acquittal.

CASE COMMENT:-

In the instant case, the Supreme Court rightly held that the accused is not guilty of rape under Section 375 of IPC. The court held that there is no evidence which gives rise to an inference beyond reasonable doubt that the accused had no intention to marry her at all from the inception and that the promise which he made to marry the victim girl at the beginning was false to his knowledge. All the facts and circumstances show that the intention of the accused was genuine which only and only did not materialise due to the family pressure of the accused. Regarding the various issue court rightly held that this case was a breach of promise to marry rather than a case of false promise to marry.

The first and foremost issue before the court was to find out whether the victim girl was less than 16 years of age on the date when the rape was committed on her. The prosecution adduced evidences in the form of school certificate and the medical expert’s opinion to establish that the victim girl was aged less than 16 years by the date the rape was committed. In this case her consent becomes immaterial. Supreme Court found that the certificate had no evidentiary value as it was not proved by any competent witness, and as far as the medical report was concerned it was found that her age was somewhere between 16 to 17 years. Supreme Court said that all these evidences cannot be sustain so it cannot be established that the girl was aged less than 16 at the time of commission of the rape. So, the accused was not guilty under the clause sixthly[3] of Section 375. Court was correct in its opinion in this regard. Had this been the case before the Court after the Criminal Law Amendment Act, 2013 the accused might have been held guilty in this case. This issue of age was the crux in this case and in all cases of this kind. When it was proved that the victim had a valid age of consent then all other questions were raised which are discussed below.

The other issue before the court was whether the accused had sexual intercourse with the victim against her will and is guilty under the first clause of section 375. The victim deposed that the first sexual intercourse took place against her will and after that she became a consenting party to it. There were no credentials in the version of the victim because she gave different statements in the court and the FIR respectively. The Court found with the help of available evidences that there was nothing to show that the sexual intercourse was against the will of the victim or it was performed forcibly. The accused was also not held guilty under the clause firstly of section 375.

The court also considered that whether the accused can be held guilty under clause secondly of Section 375 if the sexual intercourse was committed without the consent of the victim. Sometimes will and consent overlap and it can be said that the act done against the will of the person was also an act done without consent. It is apparent that the prosecution will have to prove that force was used or that there was resistance if the act was against her will. If it is without her consent, he would have to prove that she did not consent to the sexual intercourse. One must, however note that very act done against the will of a person is done without her consent, but an act done without her consent is not always against her will. There is no exhaustive definition of consent in positive terms in IPC, but what cannot be regarded as consent is defined in Section 90 of IPC, which reads as follows:-

“Consent known to be given under fear or misconception: – A consent is not such a consent as is intended by any section of this code, if the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows or has reason to believe, that the consent was given in consequence of such fear or misconception..”

The other question which came up accidentally for debate in this case is whether the consent given by a woman believing the man’s promise to marry her is a consent which excludes the offence of rape.

In the given fact situation, when charge of rape was then sought to be pressed against the appellant on the ground that he had obtained consent to sexual intercourse by making a false promise of marriage and such a consent, covered by the expression “misconception of fact”, is vitiated by Section 90. The SC, accepting this contention, ruled that “A promise to marry without anything more will not give rise to ‘misconception of fact’ within the meaning of Section 90, it needs to be clarified that representation deliberately made by the accused with a view to elicit the assent of the victim without having the intention or inclination to marry her, will vitiate the consent. If on the facts, it is established that at the very inception of the making of the promise, the accused did not really entertain the intention of marrying her and the promise to marry held out by him was mere a hoax, the consent ostensibly given by the victim will be of no avail to the accused to exculpate him from the ambit of Section 375 clause secondly”. However, in the instant fact situation, the SC found it to be a case of breach of promise and not false promise and acquitted the appellant of the charge of rape under Section 376 of the I.P.C.

The present case was very rightly decided by the Supreme Court on the basis of given facts and circumstances, because there is no evidence which gives rise to inference beyond reasonable doubt that the accused had no intention to marry the victim and he made false promise to his knowledge. The main question of critique in this project is the ratio held by the court in this case i.e. the sexual intercourse consent to which has been obtained by the false promise of marriage, amounts to rape.

This question that whether the sexual intercourse consent to which has been obtained by the false promise of marriage amounts to rape or not has come up various times before Indian judiciary in the recent years. The question has been addressed by the Supreme Court in two cases, Uday v. State of Karnataka[4] and Deelip Singh v. State of Bihar[5]. While the former held that the abovementioned situation did not amount to rape, the latter case held to the contrary .My contention is that the Supreme Court has erred in Deelip and that Uday lays down the correct position in law: Sexual intercourse, consent to which is obtained by making a false promise of marriage, is not rape. The reasoning given in the case of Deelip is erroneous and that sexual intercourse, consent to which is obtained by making a false promise of marriage, is not rape, it is however not to suggest that the same might not be punishable under law. Thus, where a false promise of marriage is made and the same leads to “damage or harm to that person in body, mind, reputation or property”, the same might be punishable under Section 415 of the IPC for cheating. Apart from being punishable under criminal law, making such a false promise might also be actionable under civil laws.

It was held in the case of Uday that false promise is not covered within the expression “misconception of fact” in section 90, and this finding of the SC was reversed in the case of Deelip. The question of whether consent obtained by false promise is vitiated by Section 90 first came before the Calcutta High Court as a revision application in Jayanthi Rani Panda v. State of West Bengal[6]. In that case, the respondent was charged with rape under Section 376 of the I.P.C. for having sexual intercourse with the petitioner, consent to which was obtained by making a false promise of marriage. The lower court, acquitting the respondent, had ruled that Section 90 is not attracted, as a false promise is a not a fact and hence is not covered by the expression “misconception of fact” in Section 90. The Calcutta High Court, on re-appreciation of facts found that “it cannot be said that accused had no intention to marry the complainant” and that this is a case of “failure to keep a promise”. Thus, the Court found the present case to be that of breach of promise and not false promise and held the same not to attract Section 90. Further, the Court held that for Section 90 to be attracted, the fact misrepresented must be of immediate relevance and not pertaining to a “future uncertain date”, as in this case. On these grounds the Calcutta High Court rejected the petition and refused to convict the respondent under Section 376 for rape. In this case High Court, by observing that Section 90 can only be called when the court is assured that from the very inception the accused never intended to marry the victim, made a reference that in the case of false promise section 90 would be attracted.
Re-reading of Uday’s case:-

The question of whether sexual intercourse, consent to which is obtained by making a false promise, is rape arose before the SC for the first time in Uday. In this case, the appellant had obtained the consent of the prosecutrix to sexual intercourse by making a promise to marry, which the lower court and the Karnataka High Court found to be false. Finding the promise to be false, the lower court held the consent thus given to be covered under “misconception of fact” and hence held the consequent sexual intercourse to be rape. On the Karnataka High Court confirming the holding of the lower court, the appellant- accused approached to the SC. The SC reasoned that “legal consent, which will be held sufficient in a prosecution for rape, assumes a capacity to the person consenting to understand and appreciate the nature of the act committed “and hence, sought to construe “misconception of fact” in Section 90 as misconception as to the nature and consequence of the sexual act. Further, the Supreme Court held that “false promise is not a fact within the meaning of the Code”. On these grounds the SC held that false promise is not covered within the expression “misconception of fact” with the result, that sexual intercourse, consent to which is obtained by making a false promise, is not rape.

In finding the above ratio, the SC in Deelip relied on the decision of the Madras High Court in In Re Jaladu[7], which interpreted Section 90 of the I.P.C. as “broad enough to include all cases of misrepresentation” with reference to which consent is given and which leads to “misconception of fact”. Deelip reread the judgement in Uday’s case and construed it as laying down the ratio only as regards only breach of promise and not false promise. This reading of Uday, made by Deelip is patently incorrect: One, Uday categorically held that “a false promise is not a fact within the meaning of the Code[the I.P.C]” and it is difficult to imagine how, a false promise not being a fact within the meaning of I.P.C. could still be “misconception of fact” within the meaning of Section 90 of the I.P.C; two, in Uday the finding of the lower court and the High Court was specifically that of a false promise, and with Uday not purporting to re-appreciate evidence, it must be assumed that it is on this basis that the ruling was passed. While Uday did observe the instant case was that of breach of promise, this observation was made after laying down the ratio and was presented as “another difficulty in the way of the prosecution”. Thus, with the SC in Deelip not finding it necessary to deal with the conflicting ratio of another two judge bench of the SC, the authority of the ratio laid down in Deelip is seriously compromised.

 

Common Law position:- It is an established principle of common law that consent to engage in sexual intercourse is vitiated due to fraud or misrepresentation only when the fraud or misrepresentation extends to the “nature or quality of the act in question” or to the “identity of the person”. This principle was laid down in the English case of R. v. Clarence[8], where the accused, suffering from gonorrhoea failed to disclose the same to his sexual partner and was tried for rape on the ground that the consent given by the sexual partner was vitiated by fraud. The court acquitted the accused in that case. Applying this principle, rape was held to be committed, when the accused had sexual intercourse with the prosecutrix by misrepresenting the act to be one which improves a person’s voice for singing[9], or when a medical man had sexual intercourse with the prosecutrix on the pretence of performing a surgery[10]. But in R. v. Linekar[11] rape was not held, when the accused promised to pay for sexual intercourse, but later refused to pay for the same.        In the absence of any specific legislative intention to overrule common law, “misrepresentation of fact” in Section 90, when read with Section 375 must be given a construction which is compatible with this common law principle. It is submitted that in the context of the IPC, no such legislative intent to amend the common law position on consent vis-à-vis rape can be discerned, in the absence of which, the common law position must be reiterated. Thus, a misconception arising out of a false promise of marriage, having no bearing on the nature and consequences of the act of sexual intercourse in relation to which consent is given, would not be covered within the expression “misconception of fact”. Consequently, consent to sexual intercourse, given on the basis of a false promise of marriage, would not be vitiated and therefore, the consequent act of sexual intercourse would not amount to rape.

 

Incorrect interpretation of the word “consent” in Section 375:-

The golden rule of statutory interpretation has been stated as, “the words of a statute must prima facie be given their ordinary meaning.” Such a meaning cannot be departed from by judges “in light of their own views as to policy”. The rule has been applied consistently both by the courts in Britain and in India. “Consent”, according to the Shorter Oxford English Dictionary, means “agreement as to course of action.” Using this meaning of consent as the ordinary or grammatical meaning of the word, we find that where there is an offer of sexual intercourse, made by a man and accepted by a woman, leading to sexual intercourse, there exists an agreement as to a single course of action. That is, there exists an agreement to do what is desired by at least one party to the agreement. This being the case, it cannot be argued that consent to sexual intercourse has been vitiated by the fact that there exists a promise by one party to marry the other party. Using this rule as a guiding principle, we find that the Court in Deelip has committed a patent error in its interpretation of “consent” in Section 375 I.P.C. the interpretation of the term “consent” in Deelip is incorrect and violative of the primary rule of statutory interpretation since it fails to accord to the term its natural and ordinary meaning and thus departs from the stance taken by the courts in previous cases. Legislature should have used the word in that interpretation that least offends our sense of justice.

 

This case is a perfect example of judges substituting their own views as opposed to the law in the case. It is the view of the judges that in cases of sexual intercourse, consent to which has been based on a false promise of marriage, injustice is done to the prosecutrix and the accused has to be punished. This attitude of the judges can easily be discerned from a close reading of Deelip and in particular is clearly exemplified by the following passage in the judgment- “We cannot ignore the reprehensible conduct of the appellant, who by promising to marry the victim woman, persuaded her to have sexual relations and caused pregnancy.

The act of the accused left behind her a trail of misery, ignominy and trauma. The only solace is that she married subsequently”. The moral aspects of the case are entirely different because even if a court or a society disproves of the conduct of the accused in a criminal court, it would not be permissible to record a conviction unless the strict ingredients of law are satisfied.”

 

[1] As before the Criminal Law Amendment Act, 2013

[2] As before the Criminal Law Amendment Act, 2013

[3] After Criminal Law Amendment Act, 2013 the age of consent if eighteen years under the clause sixthly of Section 375.

[4] AIR 2003 SC 1639

[5] AIR 2005 SC 203

[6] 1984 Cri. L.J 1535

[7] ILR 36 Mad. 453.

[8] [1888] 22 QBD 23.

[9] R v. William [1923] 1 KB 340.

 

[10] R v. Carr (1988) 165 CLR 314.

[11] [1995] 2 Cr. App. R. 49.

CHILD LABOUR and EXPLOITATION in India

Introduction

In the developing world the problem of child labourers has spread like a tsunami. Just like in tsunami, how one by one wave usually comes and leaves behind scenes of destruction; in the same manner every child who is exposed to child labour, one by one, moment by moment they go far away from their joyful childhood. They are exposed to more hazardous work for some pennies. They are not just giving their time for those pennies; in fact they are losing their future and childhood. The children who are working in shops and homes don’t have any idea that the works which are they doing will lead them to the pit of helplessness.

 

In India this situation is more pitiable then most other countries. Most of the cases of child trafficking take place in the rural areas. On the other hand in urban areas this condition is becoming more and more serious. In the past few years the cases of kidnapping has risen with a leap. The kidnapped children are usually collected on one place and from there they are used for begging and to do the different types of hazardous works.

In the Indian Constitution it has been explained that:

(a) No child below the age of 14 years shall be employed to work in any hazardous employment (Article 24)

(b) Childhood and youth are to be protected against exploitation and against moral and material aban­donment (Article 39 (f)).

(c) The State shall Endeavour to provide within a period of 10 year from the commencement of the Constitution free and compulsory education for all children until they have completed the age of 14 years (Article 45).

According to a survey conducted by a Research Group sponsored by the Ministry of Labour, Government of India (1986) has reported that of the estimated 102.3 million households in the country, 34.7% had working children.

Seventy nine per cent working children are in the rural areas. Two thirds of the working children belong to the 12-15 years age-group and the rest are below 12 years. A survey conducted by the Operations Research Group (ORG) Baroda (Vadodara) in 1985 had put the figure of working children at 44.5 million.

 

The Basic Nature of the Child Labour

A majority of the working children are found in rural area. In urban areas, they are found in canteens/restau­rants, or are found engaged in picking rags and hawking goods on foot-path. But some children are working in highly hazardous conditions. Many of the children could be seen on the red lights begging for their appetite.

For examples fireworks and match box units in Sivakasi in Ramanathapuram district in Tamil Nadu employ 45,000 children. A large number of children are working in stone polishing units in Jaipur, brassware industry in Moradabad, lock making units in Aligarh, Slate- industry in Markapur (Andhra Pradesh), Mandsaur (Madhya Pradesh) and the carpet-making in Jammu and Kashmir.

 

Some Government’s Policies for Enacting Laws against Child Labor

The first Act to regulate the employment of children and their hours of work was the Factory Act of 1881. A Commission was established in 1929 to fix the minimum age of child employment, on whose recommendation, the Child Labour Act 1933 was passed prohibiting employment of children below 14 years of age.

The Factory Act of 1948 provided some safeguards to child labourers. In 1986, the Parliament enacted the Child Labour Act (Regulation and Prohibition), planning the employment of children in certain jobs and regulating the condition of work in hazardous occupations. The Juvenile Justice Act came into force on October 2, 1987 after superseding different Children’s Act of different States/UTs.

India has ratified six International Labour Organisation (ILO) conventions relating to labour and three of them as early as in the first quarter of the 20th century. Through a Notification dated 27 January 1999, the Schedule to the Child Labour (Prohibi­tion and Regulation) Act, 1986, has been substantially enlarged bringing the total number of occupations and processes listed in the Schedule 13 and 51 respectively.

The National Policy on Child Labour was formulated in 1987 which enforces legal actions to protect the interests of children, makes development programmes for the benefit of child labour and projects based plan of action in the areas of high concentration of child labour. National Child Labour Projects (NCLP) has been set up to rehabilitate child labour.

The Cabinet Committee on Economic Affairs (CCEA) in their meeting on January 20, 1999 approved continuance of the scheme of National Child Labour Project (NCLP) during the Ninth Plan. The CCEA also approved the increase in the number of such projects from 76 to 100.

The Government’s commitment to address the problem of child labour is reflected in the statement of National Agenda for Governance (1998), where it says that no child should remain illiterate, hungry/lack medical care and that measures will be taken to eliminate child labour.

The Supreme Court of India in its judgement dated December 10, 1986 has directed to pay compensation of Rs 20,000 by the offending employers for every child employed in hazardous occupations. Efforts will be made to modify the existing National Child Labour Project under the Ninth Plan.

SILENT SLAVES:THE DOMESTIC WORKERS

Sakshi Vijay

Niharika Bapna

ABSTRACT

Domestic workers are a part of every Indian household, yet they remain unnoticed even in the eyes of law. They are ill treated and exploited within the four walls. Laws are made but are hardly communicated and rarely implemented. Its unbelievable that the Indian society is taking the services of around 8 crore people for granted. How long will the slaves remain silent?

 INTRODUCTION

It needs a famous actor to rape his maid for a society to awaken to the plight of thousands of men, women and children being mal-treated in the dark homes of the rich and to acknowledge their helplessness to save themselves due to lack of laws in their support.

Our lives would be in shackles had it not been for the domestic help. They become an integral part of the household by making their presence inevitable through the daily chores. Yet we don’t think twice before squeezing out an extra hour form their already burdened day or feeding them on stale meals or blatantly ignoring (if) the constant abuse they might be subjected to.

 MEANING

According to Domestic Workers (Registration Social Security Welfare) Act, 2008 :

“Domestic Worker” means, a person who is employed for remuneration

Whether in cash or kind, in any house hold through any agency or directly,

Either on a temporary basis or permanent, part time or full time to do the

Household work or allied work”

A large part of Indian population is comprised of domestic workers contributing to the normal working of the Indian homes. According to the National Domestic Workers Movement (NDWM) , there are 8 crore domestic workers in India.

Domestic workers enter households because they are bound to work due to their own financial trouble, they are placed through the placement agencies, or they are just used as tools to pay off the debts some ancestor of theirs must have taken. They form a considerable fraction and it becomes imperative that they are protected.

CONDITION OF DOMESTIC WORKER

Needless to say the domestic workers do not enjoy the best that life can offer, but apart from that they are not even entitled to the little pleasures. Despite their sincerity and dedication towards their work, they remain the prime targets of suspicion (most of the times) in case of any wrong done in the house. This Classicist mentality of the Indian society can further be reflected in the recent notice issued by Delhi police for ‘Servant Verification’.

The highlighted section in big, bold letter states that-

“Unverified servants can be threat to you, your family and your property”.

It also includes keeping an eye on the servant’s visitors and filling detailed forms regarding the particulars of the worker while hardly any information is given about the employer. Not only does this emphasize the inferiority of the domestic worker but also the easy shirking away of responsibility on the employer’s part.

Many of the women in the capital are trafficked from Chhattisgarh, Jharkhand and other parts of eastern India with a placement centre acting as the middle man. Sometimes, placement agencies make the women sign a contract that binds them to a family for a minimum of 11 months. If the women don’t keep to their part of the deal, they have to forego three months salary.

There are myriad cases of physical, mental and sexual abuse of domestic workers which are not sensationalized to the effect as in the case of those related to their involvement in theft or murder.

A domestic worker serves as a punch bag or an ‘item’ over which frustrations can be vented out in the form of physical and mental abuse. The situation is worse in case the domestic worker happens to be a woman who is at the receiving end of sexual assaults.

 CASES AND INCIDENTS

Not many cases are brought to light relating to the injustices meted out to the domestic worker. This could be due to unawareness regarding the laws, lack of finances to endure a legal proceeding or plain indifference to report such incidents.

The Delhi High Court in 2008 came across a case where a minor girl placed as a domestic worker by a placement agency was raped and her child was put up for adoption by the employers.

In yet another case, a PIL was filed in 1994 by Delhi Domestic Working Ladies Forum to bring forth the plight of four domestic servants who were subjected to indecent sexual assault.

The following testimonies give us an insight into the pain felt by the workers and the injustice they go through.

Sunita, 20, worked as a maid in a Delhi home – until she was raped by one of the young men in the house. The family prevented her from going to the police; and when Sunita discovered she was pregnant, they gave her Rs.50,000 as ‘compensation’ and asked her to go back to her village.

Raji, 10, another domestic worker in a Delhi household, is beaten with a broom every time she makes a small mistake. Rashida’s employer hit her so hard with a spoon that her front teeth broke.

Rabia, 15, was sexually abused, both by her employer and his driver. The women and children recounted how they were given stale food to eat and torn clothes to wear even in rich homes.

 RELEVANT PROVISIONS FOR PROTECTION OF WORKERS

In most cases the drawback is not about unavailability of laws but their non-implementation. In the present situation the biggest problem faced by domestic workers is not only that, but also the fact that in spite of their toil they have no recognition as workers. They are not included under labour laws nor entitled to benefits like compensation, weekly holidays and minimum wages.

The constitution of our country provides in Article 39(e):

“The state shall in particular direct its policy towards securing-

(e) that the health and strength of workers , men and women and the tender age of children are not abused and that they are not forced by economic necessity to enter vocations unsuited to their age and strength.”

 

Article 43 of the constitution states that:

“The state shall endeavor to secure by suitable legislation or economic organization or any other way, to all workers agricultural, industrial or otherwise, work, a living wage, condition of work, a decent standard of life and full enjoyment leisure, social and cultural opportunities.”

Clearly both these articles, occurring in the ‘law of the land’ are binding on all but are seldom abided by.

Recently, the Domestic Workers (Regulation Social Security and Welfare) Act, 2008 was passed with an objective to end the exploitation faced by domestic workers and also the trafficking of women and children in particular. The Act emphasizes on registration of workers with the placement agencies in order to ensure their well-being. It provides for a Domestic Welfare Fund to defray the expenditure related to the workers and also promises to ensure 10 hours rest to domestic workers living in the place of work , annual leave of 15 days and so on .

Domestic workers in Karnataka are eligible for the benefits under Minimum Wages Act. . The state has come up with a notification which entitles a domestic worker to Rs.1600 to Rs.1800 for 8 hours.

 

AUTHOR’S VIEW

 

In the wake of present situation, with a number of skeletons being let out of the closet as far as brutality towards domestic workers is concerned, it has become necessary to find a solution to all of it.

The recent Domestic Workers Act, 2008 has been a welcome respite with its liberal provisions. However the fact remains that India is a hugely populous country with most of them looking for employment, whatsoever. To encompass all of them within the ambit of this Act would, certainly, be difficult. Yet another uphill task would be to reach out to the masses and make them aware of these provisions waiting for them, to be used for their welfare.

 

Administering laws from the centre to regulate activities of homes in metropolitans, small towns and shanty cities is improbable. An alternative to this could be the formation of local associations, probably initiated by the societies where the workers work or the association could also be governed by the respective ward offices of the locality. This could bring about more credibility to the idea of the presence of an organization formed by the workers themselves for their own welfare.

CONCLUSION

What The British did to Indians half a century ago is being repeated by the Indians themselves with their own fellow men. Domestic workers are paid to work, true, but at the end of it all, they remain human. Society needs to do its own little bit towards their upliftment lest there is a revolution which could jeopardize their now smooth functioning lives completely.

As Edwin Markham says in his poem “The Man with the Hoe”-

 

“Bowed by the weight of the centuries he leans

Upon his hoe and gazes on the ground,

The emptiness of ages in his face,

And on his back the burden of this world

O master, lords and rulers in all lands,

How will the future reckon with this man

How answer his brute question in that hour

When the whirlwinds of rebellion shake this world?

How will it be with kingdoms and kings-

With those who shaped him to thing he is

When this dumb terror shall reply to God,

After the silence of centuries?”

CHILD LABOUR IN INDIA-PRESENT SCENARIO

Jyoti Angrish

Every child is a gift of God –a gift must be nurtured with care and affection, with in the family and society. But unfortunately due to socio-economic and cultural problems, the code of child centeredness was replaced by neglect, abuse and deprivation, particularly in the poverty afflicted sections of the society. (1) While child labour is a complex problem that is basically rooted in poverty.(2) The strategy of progressive elimination of child labour underscores India’s legislative intent, and takes cognizance of the fact that child labour is not an isolated phenomenon that can be tackled without simultaneously taking into account the socio-economic milieu that is at the root of the problem.(3). An International Moral Code of Right and Wrong Behavior said that “human rights and fundamental freedoms are the birthright of all human beings” and as a result such rights may neither be granted nor be taken away by legislation.(4)

The position of India in terms of child labour is not an appreciable one; with a credible estimates ranging from 60 to 115 million, India has the largest number of working children in the world. Whether they are sweating in the heat of stone quarries, working in the fields 16 hours a day, picking rags in the city streets, or hidden away as domestic servants, these children endure miserable and difficult lives. They earn little and are made to work more. They struggle to make enough to eat and perhaps to help feed their families as well.

They do not go to school. Many of them have been working since the age of four or five, and by the time they attain adulthood they may be irrevocably sick and deformed they will certainly be exhausted, and in this way they are debarred from enjoying the basic human rights, which are essential for the advancement of one’s personality. (5) According to the statistics given by Indian government there are 20 million child labourers in the country, while other agencies claim that it is 50 million. (6)

Child labour is a conspicuous problem in India. Its prevalence is evident in the child work participation rate, which is more than that of other developing countries. Poverty is the reason for child labour in India. The meager income of child labourers is also absorbed by their families. The paucity of organized banking in the rural areas creates a void in taking facilities, forcing poor families to push their children in harsh labour, the harshest being bonded labour.(7) That declaration stated that all ILO members have an obligation “to respect, to promote and to realize in good faith” a set of fundamental rights which include freedom of association the effective recognition of the right to collective bargaining the elimination of all forms of forced or compulsory labour the effective abolition of child labour and the elimination of discrimination in respect of employment and occupation. (8)

Rights of Children under International Law

The concept of equality of all human beings, as embodied in the Universal Declaration of Human Rights of I948 stipulates under Article 25para 2 that childhood is entitled to special care and assistance. The above principle along with other principles of the Universal Declaration concerning child were incorporated in the Declaration of the Rights of the Child of 1959.The International Covenant on Civil and Political Rights under Articles 23 and 24 and the International Covenant on Economic, Social and Cultural Rights under Article 10 made provisions for the care of the child. (9) However the International Labour Organization (ILO) provides universal standards and guidelines. The ILO, a specialized agency of the UN, aims to provide guidance and standards for labour practices around the world. The International Convention and other international instruments, (10) which deal with the subject of child labour are as follows:

1. Convention on the Rights of the Child, 1989.

2. Worst Form of Child Labour Convention, 1999; and

3. Worst Form of Child Labour Recommendation

The International Program on the Elimination of Child Labour (IPEC) is a global program launched by the International Labour Organization in December, 1991. India was the first country to join it in 1992 when it signed a Memorandum of Understanding (MOU) with ILO. The MOU that expired on 31.12.1996 has been extended from time to time and has recently been extended till 31st December, 2006. The long-term objective of IPEC is to contribute to the effective abolition of child labour. (11) IPEC-India has, during the period 1992-2002, supported over 165 Action Programs.

The Govt. of India and the US Department of Labour have also initiated a US$ 40 million project aimed at eliminating child labour in 10 hazardous sectors across 21 districts in five States namely, Maharashtra, Madhya Pradesh, Tamil Nadu, Uttar Pradesh and NCT of Delhi. This project, popularly known as INDUS, is being implemented by ILO. An estimated 80,000 children will be withdrawn and rehabilitated through this project. Support activities will also be directed to 10,000 families of former child workers. (12) On 20 November 2009, the global community celebrates the 20th anniversary of the adoption by the United Nations General Assembly of the Convention on the Rights of the Child, the unique document that sets international standards for the care, treatment and protection of all individuals below age 18. (13)

Rights of Children under National Laws

India has all along followed a proactive policy in the matter of tackling the problem of child labour. India has always stood for constitutional, statutory and development measures required eliminating child labour. The Indian Constitution has consciously incorporated provisions to secure compulsory universal elementary education as well as labour protection for children. Labour Commissions in India have gone into the problems of child labour and have made extensive recommendations. (14) The Constitution of India, too provides certain rights to children and prohibits child labour. Such provisions are as follows:

1. No child below the age of 14 years shall be employed in any factory or mine or engaged in any other hazardous work. (15)

2. State, in particular, shall direct its policy towards securing that the health and strength of workers, men and women and the tender age of the children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength.(16)

3. Children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitations and against moral and material abandon. (17)

4. The state shall endeavor to provide, within the period of 10 years from the commencement of the Constitution, free and compulsory education for all children until they complete the age of 14 years. (18)

5. The state shall provide free and compulsory education to all children between the ages of six to 14 years in such a manner as the state may by law determine (19)

6. Who is parent or guardian to provide opportunities for education to his child or the case may be, ward between the age of six and14years. (20)

There are a wide range of laws, which guarantee to a substantial extent the rights and entitlement as provided in the constitution and in the UN convention. Some of them are given below:

1. The Apprentices Act, 1861

2. The Child Labour Act, 1986

3. The Child Marriage Restraint Act, 1929

4. The Children (pledging of labour) Act, 1929

5. Children Act, 1960.

6. The Guardian and Wards Act, 1890

7. The Hindu Minority and Guardianship Act, 1956

8. The Hindu Adoption and Maintence Act, 1956

9. The Immoral Traffic (Prevention) Act, 1956

10. Juvenile Justice Act, 1986

11. The Orphanages and other charitable Homes (supervision and control) Act, 1960

12. Probation of offenders Act, 1958

13. Reformatory schools Act, 1857

14. The women’s and children’s institutions (licensing) Act, 1956

15. The young persons (Harmful publications) Act, 1956

Apart from these laws mainly concerning children, there are a host of related welfare and criminal laws, which have beneficial provisions for the case, and protection of children. Even the laws relating to commerce, industry and trade have protective provisions beneficial to children.

The first Act in India relating to child labour was the Enactment of Children (Pledging of Labour) Act of February 1933. The child of today is the future of our country. So the investment made on children is an asset for the future of our country. As a child is not a vase to be filled, but a fire to be lit, they should not be exploited by engaging them in employment in tender age but they should be given all necessary amenities and support so that they become responsible citizens of the nation and make the world a happier place to live in. (21) Children under fourteen constitute around 3.6% of the total labour force in India. Of these children, nine out of every ten work in their own rural family settings. Nearly 85% are engaged in traditional agricultural activities. Less than 9% work in manufacturing, services and repairs. Only about 0.8% works in factories. (22)

In 1979, Government formed the first committee called Gurupadswamy Committee to study the issue of child labour and to suggest measures to tackle it. The Committee examined the problem in detail and made some far-reaching recommendations. It observed that as long as poverty continued, it would be difficult to totally eliminate child labour and hence, any attempt to abolish it through legal recourse would not be a practical proposition. The Committee felt that in the circumstances, the only alternative left was to ban child labour in hazardous areas and to regulate and ameliorate the conditions of work in other areas. It recommended that a multiple policy approach was required in dealing with the problems of working children.

Based on the recommendations of Gurupadaswamy Committee, The Child Labour (Prohibition and Regulation) Act, 1986 was passed. This Act prohibits the employment of children below the age of 14 in factories, mines and in other forms of hazardous employment, and regulates the working conditions of children in other employment. Sec.3 of this Act imposes prohibition on employment of children in dhabas, restaurants, hotels, motels, tea shops, resorts, spas or other recreational centre’s etc. (23) Recently, child labour is totally banned by the government with free education and other facilities to the child upto the age of 14. The list of hazardous occupations and processes is progressively being expanded on the recommendation of Child Labour Technical Advisory Committee constituted under the Act. (24)

According to a 2001 census, an estimated 185,595 children are employed as domestic help and in small roadside eateries. Most child domestic workers in India are trafficked by placement agencies operating in states like Orissa, Jharkhand, Uttar Pradesh and Bihar.(25) India has announced a National Policy of Child Labour as early as 1987, and was probably the first among the developing countries to have such a progressive policy. Through a notification dated May 26, 1993, the working conditions of children have been regulated in all employment not prohibited under the Child Labour (Prohibition and Regulation) Act, 1986. Further, following up on a preliminary notification issued on October 5, 1993, the government has also prohibited employment of children in occupations such as abattoirs/slaughter houses, printing, cashew de-scaling and processing, and soldering.(26) Child labour would be abolished in hazardous occupations by the year 2000, reflects a national consensus and commitment. After this declaration, several far-reaching initiatives have been taken by the Government to effectively tackle the problem (27) India’s National Policy on Education, 1986 gives the highest priority to the program of universal elementary education, and recommends that free and compulsory education of sufficient quality be provided to all children up to the age of 14 years before we enter the 21st century. The present thrust is on three aspects, namely, universal access and enrollment, universal retention of children up to 14 years of age, and substantial improvement in the quality of education to enable all children to achieve essential levels of learning. All these aspects have been incorporated in the various initiatives taken up by the Ministry of Human Resource Development.(28)

Role of Judiciary

Indian higher judiciary has played good role in protecting rights of children and specifically in the case of child labour. The Supreme Court of India, in its M.C. Mehta Vs State of Tamil Naidu (29) has given certain directions regarding the manner in which children working in the hazardous occupations are to be withdrawn from work and rehabilitated, and the manner in which the working conditions of children working in non-hazardous occupations are to be regulated and improved. 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 a 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,,000/25,000.00 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; as a follow up of the directions of the Supreme Court, all the State Governments were sent detailed guidelines on December 26, 1996 indicating the manner in which the directions of the Supreme Court were to be implemented. A meeting of the NAECL was convened on 31st December 1996 to discuss the directions of the Supreme Court on child labour. It was decided in the meeting that the Ministry of Labour should immediately release funds to the State Governments so as to enable them to conduct surveys of working children before June 10, 1997.

With child labour are filled with a high poverty level. These children have no choice but to go and work because if they don’t they will starve and die. Child labour for these children is survival; there are no other chances for them. None of these children have the privilege of going to school and being able to go to a house at the end of a day. Most of these children work from the crack of dawn and don’t stop working till late into the night.(30)

Child labour in India is a human right issue for the whole world. It is a serious and extensive problem, with many children under the age of fourteen working in carpet making factories, glass blowing units and making fireworks with bare little hands. According to the statistics given by Indian government there are 20 million child labourers in the country, while other agencies claim that it is 50 million. (31) According to the statistics given by ILO and other official agencies 73 million children between 10 to 14 years of age reemployed in economic activities all over the world. The figure translates into 13.2 of all children between 10to14 being subjected to child labour. (32) The child labour is prevalent at a large scale in the country. In Punjab it is found in hotels, restaurant, tea-stalls, rag collecting as domestic help in brick killen etc. for which the authorities ,parents ,educationist, police and employers or responsible. There is lack of implementations of child laws .Since politicians and other authorities exert pressure not to prosecute the child law violators. There are instances of bounded child labour are found in Punjab but the authorities ignore it and the various departments for the implementation of labour laws either lack funds or lack will to prosecute the child law defaulters and the laws remain merely on the paper for which the lack of control of population and increasing unemployment or the major causes and the politicians fear to tackle these problems in view of their vote banks.

Suggestions – The Govt. should take proper effective steps to decrease the population and give the employment to the parents of child labour. Necessary practical steps should be taken to educate the children. Provided the necessary sufficient funds to the organizations working for the education and removal of child labour. There should be effective implementations of child protective laws. There should be necessary prosecution of child labour defaulters. The involvement of the religious leaders, trade unionist and non government organizations and to tackle the child labour by forming advisory committees on child labour on block level should be there. The authorities should not bend before the pressure of the politicians while tackling the problems of child labour.

Conclusion- At present, inspite of policy of the government regarding removal of child labour. The various steps taken in this direction and the laws passed about it haven’t controlled the ongoing child labour. This is possible only with the co-operation of all sections of the society and the law enforcement agencies and by removing or minimizing the causes of child labour. The main thrust should be on controlling the population of the country, education of the children and providing sufficient funds for its removal from the gross domestic product of India.

REFERENCES

1. Dr. Jaspal Singh: Rights of children under Indian constitution and the convention of Rights of Children 1989: An Appraisal-Law journal Guru Nanak Dev University, vol. XIII, 2004

2. Child Labour and India – Embassy of India, Washington, DC.mht

3. Ibid;

4. Roy J. Adams: Labour Rights as Human Right: Implication of the International Consensus

5. Ibid;

6. www.childlabour.in

7. Ibid;

8. Supra; 4

9. Supra note 6. Violation of child labour laws in India

10. Ibid;

11. http://www.labour.nic.in,international program on child labour

12. Ibid;

13. Child Labour India Environment Portal.mht

14. Supra note 2.

15. The Constitution of India, Art.24

16 Ibid; Art.39 (e)

17. Ibid; Art. 39(f)

18. Ibid; Art.45

19. Ibid; Art.21-A. (added by the 86th Amendment Act 2002).

20. Ibid; Art. 51A (k) (added by the 86th Amendment Act 2002).

21. Supra note; 4.

22. Supra note; 2.

23. Added by S.O. 1742 (E) dated 10th October 2006.

24. www.labour.nic.in; national child labour project.

25. India News – Child labour ban mostly on paper.mh

26. Supra note; 24.

27. Ibid;

28. Ibid;

29. AIR 1991 S.C. 417

30. http://www.exampleessays.com/viewpaper/36110.html

31. www.childlabour.in

32. Ibid; Child Labour Today

 

Healthcare professional as workmen under the industrial Disputes Act, 1947

 The law relating to labour and employment in India is primarily known under the broad category of “Industrial Law”. Industrial law in this country is of recent vintage and has developed in respect of the vastly increased awakening of the workers of their rights, particularly after the advent of Independence. Industrial relations embrace a complex of relationships between the workers, employers and government, basically concerned with the determination of the terms of employment and conditions of labour of the workers. Escalating expectations of the workers, the hopes extended by Welfare State, uncertainties caused by tremendous structural developments in industry, the decline of authority, the waning attraction of the work ethics and political activism in the industrial field, all seem to have played some role.

Whether an employee is workman or not under the Industrial Disputes Act is most important factor under the industrial jurisprudence. The reason being that a workman enjoys job security to such an extent that howsoever unwanted, undisciplined or inefficient he may be, his employer cannot dispense with his service unless a meticulous and complicated procedure is followed. Even after his termination, the workman can challenge his termination before the Labour Court/ Industrial Tribunal. Hence, in industrial disputes pertaining to termination of workman, every employer raises an objection that concerned employee is not “workman” under S2(s).

The term “workman” has been defined in the Industrial Disputes Act as well as other legislations. However the law has not laid down a standardized, definite and irrefutable definition. The Industrial Disputes Act, 1947; the Contract Labour Act (1970), Employers Liability Act and other legislations have attempted to define and concretize the concept of “workman”. Under the Contract Labour Act a workman means a person engaged in skilled, semiskilled or un-skilled manual, supervisory, or clerical work for hire or reward but excludes person employed mainly in a managerial or administrative capacity. The Employer’s Liability Act includes any person who has been entered into or works under a contract of, service or apprenticeship with an employer whether by way of manual labour, clerical work or otherwise, and whether the contract is expressed or implied, oral or in writing to be a workman. The definition of “workman” of Industrial Disputes Act will be looked at in detail later. Therefore, we see that the various legislations have tried to define and delimit their scope of application but still there exists the confusion if these criteria are exhaustive or illustrative and the court’s interpretation too has added to this confusion.

The definition of workman in S2(s) of the Industrial Disputes Act, in connection with persons employed in an industry falls in 3 parts :

I) Gives statutory meaning of workman. This part of the definition determines a ‘workman’ by reference to a person (including apprentice) employed in an industry to do any manual unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward.

II) By this part of the definition, person who have been (i) dismissed, discharged\or retrenched in connection with industrial disputes; or (ii) whose dismissal, discharge or retrenchment has led to an industrial dispute have been included in the definition of ‘workman’.

III) This part specifically excludes categories of persons specified in clauses (i) to (iv) of Sec2(s)of the Industrial Disputes Act.

The first part brings in the concept of contract of employment between employer and employee. Unless there is a relationship of employer and employee, the definition of ‘workman’ will not come into play. Moreover, every person employed in an industry irrespective of whether he is temporary, permanent or probationer- would be a workman. What is important to be noted is that to bring a person under the definition of ‘workman’ it must be proved that he is employed in an ‘industry’ as defined in Sec 2(j).

The employer employee relationship implies that the contract between the two is of ‘contract of service’ and not ‘contract for service’. By the former, the employer can order not only what is to be done but how the work shall be done but in the latter, the person can be asked what is to be done but not how it shall be done.

TESTS FOR DETERMINING THE RELATIONSHIP OF EMPLOYER- EMPLOYEE

Due control test

The earliest case in which Supreme Court had to consider whether the person is an employee or independent contractor was Shivanandan Sharma v. Punjab National Bank Ltd. The Court after referring to English decisions held that the correct test for determining relationship was the control and supervision test.

The Court in Dhangadhara Chemical Works Ltd. v. State of Saurashtra held that the prima facie test to determine whether there existed a relationship of employer employee was the existence of the right in the master to supervise and control the work done by the servant, not only in the matter of directing that work but directing the manner in which work had to be done- the greater the amount of due control over the person rendering service, the stronger the ground will be for holding it a contract of service.

However, the real difficulty in application of the test arose in cases relating to beedi industry viz.; Chintamani Roa v. State of M.P ; Birdichand Sharma v. First Civil Judge Nagpur ; Shankar Balaji v. State of Maharashtra and Mohinudeen Sahib v. Industrial Tribunal . In all beedi cases, the court in principle, consistently subscribed to supervision and control test, even as it was at the same time mindful of limitations of this principle in its application to concrete fact- situations. The court arrived at different conclusions by emphasizing the difference in factual situations while applying the control test.

Organisational Test

Silver Jubilee Tailoring House case , the court observed that other factors like organizational test, working in premises of the employer, working on the machines in employers premises, power to remove if the work is not in conformity with standards prescribed, are relevant factors for determining the relationship. The court here realized that control and supervision test is one of the test in determining the relationship between employer- employee but it is not the sole decisive test.

Economic control test

Later in Hussainbhai case the court applied both the ‘control test’ and ‘integral business test’. Court here held that livelihood of the workmen substantially depends on labour rendered to produce goods and services for the benefit and satisfaction of an enterprise , the absence of direct relationship or presence of dubious intermediaries from the Management cannot snap the real life bond. Also, the court here extended the corporate law principle of lifting the corporate veil to the area of employment law jurisprudence and subsequent decisions. . The observed that where workers’ labour is used to produce the goods and services for the employer and employer has economic control over worker’s subsistence, skill and continued employment, then there exists a relationship of employer-employee.

The true test for determining whether an employee employed under contract of service is workman or not? This is a matter of debate. Three- judge bench decision of the Court in May & Baker case , WIMCO. case ; Burmah Shell case , took the view that a person to be qualified as a workman must be doing the work which falls in any of the four categories- manual, clerical, supervisory or technical.

As against this, in a set of cases viz. S.K Verma v. Mahesh Chandra , Ved Prakash Gupta v. Delton Cable India Ltd. , and Arkal Govind Rao v. Ciba Geigy India Ltd. , all three-judge bench decision which without referring to the decision in the former set of cases, took the other view, viz. if a person does not fall within the four exceptions to the said definition, he is a workman within the meaning of the Act. These decisions are also based on the facts found in those cases.

Following this, in Adyanthaya v. Sandoz (India) Ltd. , a three judge bench of Supreme Court referred to a five judge bench the question as to (i) how to determine whether a person employed in an industry is a workman and (ii) what is the status of medical/sales representative under the said definition. To the effect that a person to be a workman he must be employed to do any of the categories of work envisaged in sec 2(s) and that he should not be excluded by the excluding part of the definition, the constitutional bench in the instant case reaffirmed the laid down in May & Baker, WIMCO and Burmah Shell, thereby clearing the two different stands taken by the court. The Court held that the position in law as it obtains today is that a person to be a workman under the Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. On the second issue whether medical representative are ‘workman’, the court held that they did not perform duties of ‘skilled’ and technical nature and therefore are not ‘workman under Industrial Disputes Act.. It said that the connotation of the word “skilled” in the context in which it is used, will not include the work of sales representative, and it has to be construes ejusdem generis and thus construed would mean skilled work whether manual or non-manual which is a genre of other types of work mentioned in the definition. The technical nature of the work done by Medical Representatives has been expressly rejected in Burma Shell case.

Recently, the court in Ram Singh v. Union Territory, Chandigarh , has held that though ‘control’ is one of the important test in determining employer employee relationship, but it is not the sole test. All relevant facts and circumstances are to be considered including the terms and conditions of contract. Emphasizing the importance of an integrated approach, the court observed that it is necessary to take multiple pragmatic approach weighing up all the factors for and against an employment instead of going by the sole ‘test of control’. “Integration test” is one of the relevant tests.

The control and supervision test that used to be considered sufficient is no longer so, especially in case of employment in case of highly skilled individuals. There is no single test to determine if a person is an employee. The relevant factors in a particular case may include, in addition to control and integration- “method of payment, obligation to work only for that employer, stipulation as to hours; overtime, holidays etc. how contract maybe terminated, whether individual may delegate work; who provides tools and equipments who bears risk of loss and chance of profit, “mutual obligations” between them.

HEALTHCARE PROFESSIONALS AS WORKMEN

The question whether activity of running a hospital would fall within ambit of definition of an industry, came for consideration for the first time before High Court of Bombay in Hospital Mazdoor Sabha v. State of Bombay the High Court took a view that ‘undertaking’ used in the definition of industry in 2(j) would cover activities which have no commercial implications, such as hospital carried on with philanthropic motives. Mere fact that government is running such activity is not of any consequence. This decision was confirmed by the court in Bangalore water supply case where the court held that hospital services, research products and training services are ‘services’, hence they are within the purview of industry.

The point of discussion in this paper is- Whether Healthcare Professionals are ‘workmen’? The judiciary has taken divergent views in this regard. For this first one should seek to answer the question that is the work done by doctors is manual unskilled, skilled, technical, operational, clerical or supervisory in nature. Healthcare professionals includes physicians, dentists, nurses, pharmacists, therapists, psychologists, physical therapists, optometrists, paramedics, and a wide variety of other individuals regulated and/or licensed to provide some type of health care.

In Bengal United Tea Co. v. Ram Labhaya the court held that a medical officer and his work is of technical nature and is therefore a workman. The dictionary meaning of “technical” means a person skilled or conversant with some particular art or applied science (medical science being one of them). However, in this case there was no dispute as to the purpose of which the appointment of doctor was made or the functions which he performed. The case proceeded on the assumption that doctor performed functions of a medical attendant.

In Dr. Surendra Kumar v. UOI , the question was whether Assistant Medical Officer Class appointed in Railways was workman. The court observed that the duties of Assistant Medical Officer was not only to treat persons but to meet other administrative requirements where he is in charge of hospital or health unit and was responsible for its establishment and administration. The duties of the doctor required him to perform supervisory functions in addition to treating patients, which means he was employed in a supervisory capacity and by virtue of him earning more than Rs 1200/- per month he cannot be a workman.

Heavy Engineering Corp. Ltd. v. Presiding Officer, Labour Court – here Heavy Engineering Corp. Ltd. appointed a doctor on ad hoc basis for a period of 6 months which was later extended for 3 months. 3 more doctors were appointed along with him. They were given a notice stating termination of their service after one month. This was challenged. The Supreme Court observed that when he was on shift he was the sole person in charge of the first aid post and he had people working under him (male nurse, nursing attendants, sweepers etc.) to whom he used to give directions. Court held that when a doctor discharges his duty attending the patients and in addition supervises the work of persons subordinate to him he cannot be held a workman.

In Wadia Charitable Hospital v. Umakant , a Charitable hospital (a part of the money received was given in charity), employed doctors who were even allowed to have their own private practice. The hospital terminated services of one of the doctor. Prior to this, there existed a dispute with regard to better facilities for the doctor. After the termination, doctors announced an indefinite strike, therefore the hospital terminated services of all. The question before the court was doctors who are employed in hospitals and who are allowed private practice, are workmen? It was argued before the court that the doctors were providing “service” (under Sec 2(1)(o) of I.D Act) to the patients and are therefore workmen. The court held that when patients are allowed to come to the hospital, it cannot be said that the doctor is rendering services only to an employer who owns an industry or an undertaking. He renders service to the Society at large. Court, observed that in the cases cited by the counsels , the Medical Officer has been appointed for treating the workmen employed in Industries and were doing the work of the Industry for which they were paid salary and such a situation cannot be equated to the facts of the present case. Here the doctors are rendering only professional service to various institutions Therefore the doctors cannot be held to be workmen. It also added that there cannot be a strait jacket test or formula in these matters. It will ultimately depend on the fact of each case.

Ahmedabad Municipal Corporation v. Virendra Kumar Jayantibai the court held that a doctor being paid for visits for visiting the dental clinic of the corporation which provided medical service to the residents of the Corporation, was held not to be a workman.

A chemist-in-charge of performing, the work essentially of technical nature, having power to recommend leave but no power to grant leave or take disciplinary action was held to be a workman.- Sudhirkumar v. Ferro Alloys Corporation Ltd

In Bombay Hospital Trust v. Shailesh Hathi the question was whether physiotherapist is workman? The court observed that the job of Physiotherapist is not `perennial in nature of work. It is highly specialized skilled job and is in nature of job of Doctor. It was held that the person holding a degree of physiotherapist is not a workman because of his carrying work of helping a patient to exercise. In fact a treatment given by the physiotherapist is not a perennial nature of work. Therefore, a physiotherapist is not a workman under S 2(s) of I.D Act. The payments which were made by the Hospital was from the fees recovered from the various patients moreover, there was no material whatsoever produced by the petitioners to show any direct master servant relationship

Recently, a Division Bench of the Kerala High Court comprising Justice C.N. Ramachandran Nair and Justice V.K. Mohanan ruled that a consultant physician employed by the hospital did not come within the meaning of the term workman as defined in the Industrial Disputes Act, 1947.The Bench observed that there was a categorical finding by the Supreme Court on the issue. The apex court had held that a medical officer, being a professional, could not be termed as a workman under any law. The court observed that an employee engaged in supervisory work was outside the scope of workman. The claimant-doctor who was one of the senior doctors in the hospital was engaged in supervisory and technical work.

From the above cited cases it is evident that there is no straight jacketed formula adopted by the judiciary for determining if a person is a workman or not. The decision varies with facts and circumstances of each and every case. The Supreme Court has not given a concrete reason as to why doctors are not workman. In most cases the issue of doctors being engaged in supervisory work is raised and the court without applying the predominant nature of the work test and looking into the fact if a doctor is engaged in technical work or not, holds him not to be a workman. This approach of the court is highly erroneous as the Court is digressing from the main function of the doctor and holding him not to fall under the definition of the workman because of the ancillary function of supervision being carried out by him.

CONCLUSION

A single uniform definition for ‘workman’ is the need of the hour, considering all the confusion of the courts on the subject as to who is workman and who is not, under the various legislations. The First National Commission on labour (1969) had observed that in order to bring a feasible degree of simplification and uniformity in definitions it should be possible to integrate those enactments which cover subjects having common objects.

Report of the Second National Commission on Labour (2002) had also considered this issue and recommended that the coverage as well as definition of the term ‘worker’ should be the same in all groups of laws, subject to the stipulation that social security benefits must be available to all to all employees including administrative, managerial, supervisory and others excluded from the category of workmen and others not treated as workmen. The Commission proposed that instead of having separate, it maybe advantageous to incorporate all provisions relating to employment relations, wages, social security, safety and working conditions etc. into a single law.

It is high time to implement the recommendations of both the Commissions by integrating and amending labour legislations to bring uniformity in the definitions of various terms so it can avoid confusion so that there is no conflict or inconsistency in their interpretation by the courts.

REFERENCES

BOOKS

H.G Abhayankar; Commentaries on Industrial Disputes Act; Labour Law Agency; Mumbai; India; 3rd Edition;2007

Malik P.L; Industrail Law; 21st Ed; Eastern Book Company; India; 2008

O.P Malhotra; The law of Industrial Disputes; Vol 1; 5th Edition; Universal Law Publishing; India; 2001

Roy S.R; Law of Industrial Dispute; 3rd Ed; Vol I (Sec1-19); Kamal Law House; India; 2001

Singh Avatar; Introduction to Labour & Industrial Law; 2nd Ed; Lexis Nexis; India; 2008

S.N Misra; Labour and Industrial Laws; 25th Edition, Central Law Publications; India; 2009

JOURNALS

H.L Kumar; “Workman under Industrial Disputes Act”; Labour Law Journal; Volume I; January- April 2007

Kaul Tilak; “Industry, Industrial Dispute, and Workman: Conceptual Framework and Judicial Activism”; Journal of Indian Law Institute; Vol50; Jan- Mar 2008

All India Reports (AIR)

Supreme Court Cases (SCC)

Labour Law Journal (LLJ)

Labour & Industrial Cases (LIC)

Labour Law Reports (LLR)

URLs

Government of India, Report of the National Commission on Labour 318 (1969); available online at http://labour.nic.in/lcomm2/nlc_report.html; last visited on 20th March 2010; 11:00 hrs

The Hindu; Jan 30th, 2010; available online at http://www.thehindu.com/2010/01/30/stories/2010013053520400.htm; last visited 20th March 2010; 16:20hrs

STATUTES

Industrial Disputes Act, 1947

Contract Labour Act, 1970

Employers Liability Act, 1938

 

Maastricht University Unveils Maastricht Education and Research Centre in Bangalore

Bangalore, December 06, 2010: Maastricht University (UM), one of the finest research universities in The Netherlands inaugurated the Maastricht Education and Research Centre (MERC), in Bangalore today. A subsidiary of Maastricht University, MERC will foster academic collaboration with Indian Institutes and conduct joint researches of social relevance in India. On this occasion, Maastricht University signed MoUs with the National Law School – Bangalore, Indian Statistics Institute – Kolkata and NIMHANS to conduct joint research and also initiate student exchange programs.

• The MoU with National Law School will facilitate research collaboration and PhD supervision foremost but not exclusively in the areas of international economic law, environment and climate change, Food regulatory, CSR and Human Rights Law and EU law.

• The MoU with National Institute of Mental Health and Neuro-Science will primarily facilitate, educational cooperation for curriculum development, innovative methodological approaches, student assessment; academic and cultural exchange and joint research programs

• The MoU with Indian Statistical Institute will also focus on student exchange programs, academic and cultural exchange, along with staff exchange programs.

The inauguration of the centre was presided over by Dr. Jo Ritzen, President, Maastricht University, Dr. VG Kumar, Executive Director Maastricht Education and Research Centre India, and Dr. Frits van Merode, Scientific Director, Maastricht University, India. Also present were Dr. Venkat Rao, Vice Chancellor, NLS; Mr. Bimal Roy, Director – ISI and Dr. Satish Chandra, Director & Vice Chancellor – NIMHANS

Dr. Jo Ritzen, President, Maastricht University said, ”UM strongly believes that great quality education without research lacks innovation and top research without education lacks inspiration. India, having evolved as the preferred destination for R&D due to a variety of well-known reasons, is of course the natural focus for UM to stretch its wings beyond Europe. Setting up a subsidiary at Bangalore (Maastricht Education and Research Centre Pvt. Limited MERC) is the first major step in the direction of partnering with India ever since it has shown interest to develop partnerships in India in 2007.”

Dr. VG Kumar, Executive Director Maastricht Education and Research Centre, said ”We want to foster academic collaboration with the very best in India and build on synergies in knowledge. The uniqueness in UM’s strategy is that the research that will be built in partnership are necessarily on themes which are of social relevance in this geography. We will also focus on topics where the depth of research pursuit at UM has an opportunity to contribute and synergise with that in the Indian partner institute, in addressing extremely important societal problems.”

Maastricht University has pioneered innovation in education through highly interactive small group learning known as ’Problem Based Learning’ (PBL). Pioneering research is pursued in some areas and testimony is that the university has awarded 200 PhDs, participated in close to 3000 publications in top journals and contributed to numerous books in 2009. The University’s ability to derive these remarkable achievements in a short span of 35 years, is an evidence to its passion to innovate and excel.

Maastricht University excels in various research disciplines such as cardiology, neuroscience and European trade law. The university offers Bachelors, Masters and PhD programmes, courses for postgraduates and professionals, as well as tailored programmes in a variety of faculties such as:

• Faculty of Health, Medicine and Life Science

• School of Business and Economics

• Faculty of Law

• Faculty of Psychology and Neuroscience

• Faculty of Arts and Social Sciences

• Faculty of Humanities and Sciences

Maastricht University has also partnered with other renowned Indian academia, education and research institutes such as,

• Institute of Social and Economic Change (Bangalore)

• Aravind Eye Care Systems (Madurai)

• Anna University (Chennai)

• Indian Institute of Management (Bangalore)

• Law University of Delhi (New Delhi)

• Manipal University (Manipal)

• Nalsar University (Hyderabad)

• University of Madras (Chennai)

• St Johns Hospital (Bangalore)

• Peoples Education Society Institute of Technology (PESIT)

• Acropetal Technologies Ltd, (Bangalore)

• Narayana Hrudayala Hospital, (Bangalore)

• Symbiosis Institute (Pune)

About Maastricht Education and Research Centre, Bangalore

Maastricht University has embarked upon an extremely futuristic mission of building further on its international vision and outlook by initiating a unique India-initiative. Establishing a subsidiary at Bangalore in 2009, namely, Maastricht Education and Research Centre Private Limited was the first major step in this direction. The mandate for MERC is to link UM and its various faculties and research with the Indian society. This is being achieved through partnerships with top Indian academia, education/ research institutes & and industries. The research capacity that would be built in India will be on thematic and of local social relevance.

Maastricht University also draws its strength from the UM India Advisory Board the active support and collaboration with a group of high caliber mentors and outstanding professionals from various sectors as well as from a multi disciplinary team within the different faculties and departments of Maastricht University, including Maastricht University President, Dr. Jo Ritzen and Dr. Frits van Merode. Dr V.G. Kumar is the Director of Maastricht Education and Research Centre Private Limited.

About Maastricht University (UM)

Maastricht University (UM), one of the leading international universities in the Netherlands, stands out for its innovative approach to learning and international outlook. With 14,500 students and 3,500 staff, UM offers a wide choice of academic programmes, all of which are designed to bring out the best in its students. UM awarded over 190 PhDs and published close to 3000 high impact scientific papers in 2009, in addition to over 700 specialist publications. The research in many areas is outstanding and some faculties rank among the best in the world. Currently there are over 14500 students and 1773 academic staff, taking the academic staff to faculty ratio of as low as 1 : 8.2 .

PROGRESSIVE ABOLITION OF CHILD LABOUR

 “What I am today is because of education and I want every Indian child to be so touched by the light of education”

-Prime Minister Dr.Manmohan Singh.

          Children are the future custodians of all the present philosophies including sovereignty, rule of law, justice, liberty, fraternity and international peace and security.  The human rights jurisprudence categorically recognized the rights of the child.  The Declaration of Geneva in 1924 gave a clarion call that Mankind owes to the child the best it has to give”. The Universal Declaration of Human rights rightly obliges family, as a fundamental unit of society, to focus on children so as to afford them necessary pre-conditions to growth.  Article 24 of the UN declaration Provides: “Every Child shall have the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State”.  It is now universally recognized that for a comprehensive development of its personality, the child should grow in a family environment and in an atmosphere conducive to care, affection and understanding.

           The Industrial revolution, which led to urbanization, has been responsible for changes in family structure.  The concept of child labour is also directly attributable to the developments in the industrial production process following the industrial revolution.  Labour and human dignity can be considered as purchasable at cheapest possible price.  Poverty of parents led to children offering themselves for work in highly exploitative conditions.  These children of lesser god witness the forfeiture of their childhood without fully knowing themselves the trauma of work life and its impact on their mental and moral development.

Reasons for Development of Child Labour:

          Chronic Poverty is the most important factor for the prevalence and perpetuation of child labour.  Nearly half of the India’s total population subsists below the poverty line.  India stands 2nd position in the employment of child labour while Africa stands in the first position.  In this situation, the child, since its very appearance in the world, is endowed with an economic mission.  Economic compulsions weigh so heavily on poor parents that they do not mind colluding with the child’s employer in violating the laws and placing the child under risks of inhuman employment situation.  Poverty and child labour always beget each other and tend to reinforce each other.  Other reasons are disenchantment with and a lack of faith in the educational system as schooling does not guarantee a job.  There is also a deeply ingrained Indian tradition that a girl child is to work in the house with the mother and the boy is to learn the father’s trade.  Though in the organized and the unorganized sectors there is no dearth of adult labour, employees prefer hiring children as they are more amenable to discipline, too young to organize themselves and fight for their rights, can be paid less and bullied to obedience.  The lack of concern within the community indifference among the middle class adults to their social surroundings and the existence of exploitative elements result in the erosion of the natural rights of the poor children.  The fact that the children cannot speak for themselves makes them easy targets for exploitative working conditions and wages. 

          Still another reason for the ever increasing child labour is said to be, the accelerated pace of mechanization of agriculture which pushes the surplus farm labour to the cities in search of livelihood.  A survey conducted by the commission of child labour in Kolkata revealed that socio-economic conditions of the families compelled children to come in search of employment.

          Analyzing the reasons which prompt the children to work, it was shown by experts that as many as 47.5 percent of child workers did so, not so much because of poverty but because of the fathers force them to leave school and join work while they themselves either sit idle, or want the extra money to satisfy their various addictions.  In some cases, it is reported that the children themselves compare the advantages of continuing education with joining the labour force and decide in favour of the latter because of the dignity, freedom and responsibility which they get as a contributing member of the family.  On the other hand, some children admitted that they pushed into this, and left to themselves they would like to pursue their education.  The increasing number of child labourers also indicates the failure of family planning, especially in the poverty belts.

          In a case of employment of children below 14 years of age in carpet industries in the State of Uttar Pradesh, Supreme Court held that state is under obligation to provide socio-economic justice to the children and render facilities and opportunities for development of their personalities.  In Bandhua Mukti Morcha vs. Union of India, 1997 Lab IC, 2107 the Supreme Court held that basic cause of child labour is poverty instead of total abolition shall have adverse affect and should be banned progressively in a planned manner.

             In Hindustan Times dated 1st August, 1984: Statement made by the Minister of State for labour in the Rajya Sabha, on 30th July, 1984 is published it was stated that there is a concentration of child labour in certain industries such as match works in Tamil Nadu, Carpet industry in Jammu and Kashmir and Uttar Pradesh, State quarries in Madhya Pradesh , diamond cutting in Gujarat, glass and bangle in Uttar Pradesh, tea Plantation in West Bengal and brassware in Uttar Pradesh.

           Samithu Kothari made a study into facet of child labour, the working conditions of children engaged in the match works at Sivakasi in Tamilnadu.  He rightly captioned the work:  “There is blood on those match sticks”.  Blood stains are there, not only on the match-sticks but also on other materials, the carpets in your drawing room, the slabs of slates used in your house, the diamonds adding glow and glory to a well cared figure, the glass and bangles than given glitters to the dress and the body, the brass-ware in your house, and even in the tea you sip”.

VARIOUS ACTIVITIES PERFORMED BY CHILD LABOUR:

Child Labour in the Agricultural Sector:   According to a recent ILO report about 80% child labourers in India are employed in the agriculture sector. The children are generally sold to the rich moneylenders to whom borrowed money cannot be returned.

Street Children : Children on the streets work as beggars, they sell flowers and other items, instead of being sent to school. They go hungry for days to gather. In fact, they are starved so that people feel sorry for them and give them alms.

Bonded Child Labour :  This is also known as slave labour and is one of the worst types of labour for children and adults, alike. In fact, in 1976 the Indian Parliament enacted the Bonded Labour System (Abolition) Act; herein declaring bonded illegal. However, the fact remains is that this system of working still continues. According to certain experts approximately 10 million bonded children labourers are working as domestic servants in India. Beyond this there are almost 55 million bonded child labourers hired across various other industries.

Children Employed At Glass Factories :  According to recent estimates almost 60,000 children are employed in the glass and bangle industry and are made to work under extreme conditions of excessive heat.

Child Labour in Matchbox Factories :  Of the 2,00,000 labour force in the matchbox industry, experts claim that 35% are children below the age of 14. They are made to work over twelve hours a day, beginning work at around 4 am, everyday.

Carpet Industry Child Labour :  According to a recent report by the ILO almost 4,20,000 children are employed in the carpet industry of India.

The Other Industries :  According to researchers there are about 50,000 children employed in the brass industry of India and around the same amount in the lock industry.

          The children of poor parents are more an economic asset than a liability.  When child labour recruiting agents go about in the flood or drought hit areas offering loans, it is not uncommon that poor parents surrender their children to them, by availing of the loan facilities to ensure the survival of the family.  The failure to implement strictly child labour prohibition laws is the non-universalisation of compulsory primary education but with the implementation the Right to Education Act, 2009 this drawback of the proper non implementation of child labour laws shall hope to be overcome in India.

             While Child labour is the product of poverty and unemployment, it further contributes to underdevelopment and unemployment.  It contributes to unemployment, because the existence of child labour, results in the increase of adult unemployment; and to under development, because a child labourer by the time he becomes as adult, is fully burnt out.  The encouragement of child labourers to work and contribute towards the family income, prompts parents to have more children.  Thus child labour defeats the goal of family planning.  Child labour also hinders the prospect of implementing the policy of compulsory primary education which is now made important by the implementation of the Right to Education Act, 2009.

Position in Developed Countries and in India:-

          In the developed countries in the west, child labour could be checked through effective enforcement of ‘Prohibition of Child labour’ laws, and compulsory primary education.  In most developing countries, however, millions of children still work in factories, workshops, agriculture, mines, quarries and service enterprises.  It is estimated that child labour makes up “more than 10% of labour force in some countries of middle east and from 2 to 10% in much of Latin America and some parts of Asia.  The world considers the issue of child labour to be a rather serious one in Sub-Saharan Africa. However, there are a set of experts in Africa who do not consider it to be serious and prefer to sweep it under their carpet in order to look into more ‘serious’ issues. There are still others who prefer to wear a blindfold and believe that child labour issues are far more serious in other nations, whereas it is as good as non-existent in their own nation. However, ILO statistics provide a more serious picture. It states that over 40% of the children of Africa are working. They are mainly working as slaves in private households, apart from other industries. So the African people do not believe it as a serious issue.  While the picture, as we see is grim, yet nothing can really be done as there is no consistent or factual empirical evidence where child labour in Africa is concerned.

          The problem of child labour in India is very acute.  The National Sample survey in 1983 estimated that there were 17.8 million child workers in India in the age group of 5 to 15 years.  Operation research Group placed the figure at 44 million in 1983.  It has been estimated by the Planning commission that by the year 2000, India has 20 million child workers (UNICEF 1994). Recent Survey on Child Labour shows that 10% of the total population in India is child labour and from all the States in India, Andhra Pradesh occupies 1st position with constituting 16% of total child labour is in it.  Mostly working children were belonging to the families of extremely poor.  They work in highly exploitative and stressful conditions including bonding situations.

           China accounts for the third largest number where child labour is concerned. In fact, many think it to be a phenomenon that has just begun to surface. However, the fact is that child labour in China has been there for years. This is so despite that there have been strict official regulations that ban employment of minors. And according to the laws of China, a minor is an individual below the age of sixteen-years. Due to poverty, teenagers and younger children have been migrating to the southern and coastal regions of China. This is because these regions have been developing and provide a lot of opportunities to earn.

Definition of Child Labour:-

          The actual number of child labour vary according to different concepts and definition as to what exactly child labour means.  The National Sample Survey defined “Child Worker as a Person below the age of 14 years, who is wage earner”.  The concern for working children, a Bangalore based Organization, described a child Labourer as a person who has not completed fifteen years of age and is working with or without wage on a part time or full time basis.  It estimated that a number of working children in India is close to 100 million.  Most of the work done by children whether with or without wage does contribute to the economic activity of the household to them.

           Often school going children also will be working as part time workers in some factories.  This also may not be taken into account by the census.  Even child labour is banned in certain industries by enacting specific legal provisions for the abolition of child labour the employers may not reveal to the census enumerators, facts and figures regarding the number of child workers.  Most often parents also collude with the employer lest the child loses the job.  Domestic work such as cleaning, cooking, which is unpaid and is considered unproductive, other domestic works such as grazing cattle sowing, weeding, threshing or assisting the parents in house hold crafts, etc may not be taken into account by the census enumerators.  Other facts such as pledging the labour of the children against a loan, working in road side cafes, automobile workshops, construction sites, etc., also may not come under the purview o f the census.  It may also ignore self-employed children who are working in the areas of shoe-shining, rag–packing, newspaper selling, peanut or fruit vending.  However the estimated data shows that 10% of the total population of India is child labour.  Many steps are being taken by the Indian Government from the pre-Independence period for the eradication of this drastic problem but still now the problem remains unsolved and the number of child labour were growing day-by-day due to poverty.

Legal Steps for the Prevention of Child Labour:-

          To discuss about the child labour prevention laws in a vide way one must go through those laws by dividing the laws from its origin in pre-independence or post-independence periods.  Most of the pre-independence laws prescribed punishment for the child labour to the parents of the child and also employer but the post- independence laws exempted the parents from punishment.

A.Pre-Independence Laws:-

          The origin of statutory protection of child labour in India can be traced back to the Indian Factories Act, 1881.  This law is mainly regulated working hours, rest intervals, minimum wages and nature of work of child labour but it does not prevented the employment of children.

          Later on the Children Act, 1933 was enacted to prohibit the pledging of labour of children below 14 years by parents.  It prescribes Punishment for parents and employer of the child labour.  It imposes minimum fine of Rs. 200 to the employer for employing child labour and also Rs.50 for the parents who pledged their children for the labour.

          In the Year 1938 the Employment of Children Act was enacted to prohibit the employment of children below the age of 14 years in specified hazardous occupations.  This Act specifically prohibits the employment of children below 14 years of age in the railway and other means of transport.

B. Constitutional Provisions:-

          Article 15(3) of the Indian constitution enables the state to make special provisions for women and children.  It contains an exception to prohibition of discrimination on grounds of religion, race, caste, sex, etc as contained in Article 15(1).  Article 23 prohibits traffic in human beings and other forms of forced labour.  It is provided in Article 24 that “no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment”.

          Apart from the fundamental rights related to children, certain directive principles in the constitution direct the state policy and action in relation to child rights, including employment and education of children.  Article 39 directs the state to so direct its policy “ that the health and strength of workers, men and women, and tender age of children are not abused and that citizens are not forced by economic necessity to enter vocations unsuited to their age or strength” and “ that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that children and youth are protected against exploitation and against moral and material abandonment”. 

          In pursuance to the duty laid down in the above case some of the laws were enacted prohibiting the employment of children below 14 years of age.  However this Article does not prohibit the employment of children in any innocent or harmless job or work.

         The framers of the Constitution realizing the importance of the children and their education have imposed a duty on the State under Article 45 as one of the directive principles of the State Policy to provide free and compulsory education to all children until they complete the age of 14 years within the 10 years from the commencement of the Constitution.  The object was to abolish the illiteracy and child labour from the country.  It was expected that the elected government of the country would honestly implement this directive.  The framers perhaps were of the view that in view of the financial condition of a new state it included it in Chapter IV as one of the directive principles of State Policy.  But the politicians of our country belied the hope of the framers of the constitution.  It is unfortunate that it has taken 52 years from the commencement of the Constitution to initiate some measures by amending the Constitution to start with although 40% of the population is still illiterate and 10% of the total population is working as child labour.

          In the meantime, the Supreme Court in Unnikrishnan case declared that the right to education for the children of the age 6 to 14 years is a fundamental right.  Even after this, there was no improvement.  A demand was being raised from all corners to make education a fundamental right.  Consequently, the government enacted Constitution (86th Amendment) Act 2002 which would make education a fundamental right.  The Constitution (86th Amendment) Act has added a new Article 21A after Article 21 and has made education for all children of the age of 6 to 14 years a fundamental right.  It provides that “the State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine”.

C. Post-Constitutional Laws:-

          After attaining the Independence India enacted the Factories Act in the year 1948, under section 19 of this Act Children below the age of 14 years are prohibited from employment in the factories and the employers who are employed such children are liable to be punished with imprisonment or fine or with both. 

          Later on Some of the provisions in the enacted laws like the Plantation Labour Act, 1951; the Mines Act and the Indian Factories Act, 1952; the Motor Transport Act and the Apprentice Act,1961;  the Minimum Wages Act, 1948; the Atomic Energy Act; The Shops and Establishment Act; The Beedies and Cigar Workers (Condition and Employment) Act, 1966 prohibits the employment of children below a certain age.

          In 1986 the Child Labour (Prohibition and Regulation) Act 1986 (CLA) was enacted with a view to rationalizing earlier legislation on child labour, progressive elimination of child labour in hazardous employments, and regulating conditions of child labour in non-hazardous industries.

          In nutshell, the Child Labour Act bans the employment of children below 14 years of age only in certain specified occupations and processes, regulated the conditions of work of children in employments where they are permitted to work; seeks to provide a uniform definition of child in related laws, and prescribes enhanced penalties for employing children in violation of the provisions of this Act and other legislation which prohibit employment of children.  In effect, this does not make any departure from its predecessor law, the Employment of Children Act 1938, so far as abolition of child labour is concerned.

          One major loophole that is visible is that work or process carried on by the occupier with the aid of his family has been taken out of the purview of the Child Labour Act.  Thus, it permits employment of children in hazardous processes, if a process is undertaken by any of their family members.  That is how many clever employers have installed looms from carpet weaving in children’s homes.  Beedies too are largely manufactured in this way.  Matches and fireworks also thrive this way with the aid of child labour.  

          The Child Labour (Prohibition and Regulation) Act, 1986 is now the principal central law relating to employment of child labour.  The Central and “State governments, of late, are showing vigorous concerns for the plight of child labour.   A large project with the help of the United Nations International Children Emergency Fund (UNICEF) is being undertaken by the National Labour Institute, NOIDA for training of labour and factory inspectors for a stricter enforcement of this law.  The whole emphasis is put on the honesty of inspectors and “Punishment includes imprisonment” of erring employers.  It appears that the word “hazardous” is treated purely as having physical implications.  The very concept of child labour snatches away from a child his childhood and should be considered as hazardous and thus violative of Article 24 of the Constitution.   The Child Labour Act fails to take note of the aspect that the working child unknowingly experiences a psychological trauma of adulthood without physically being prepared to bear its onslaught.  It is also incomprehensible why the Act does not even specify the minimum age of employment of children in processes and occupations where the child labour is not prohibited.

D. Precedents:-

                    In People Union for Democratic Rights V. Union of India AIR 1983, Sc 1473, it was contended that the Employment of Children Act ,1938 was not applicable in case of employment of children in the construction work of Asiad Projects in Delhi since construction industry was not a process specified in the schedule to the Children Act.  The court rejected this contention and held that the construction work is hazardous employment and therefore under Article 24 no child below the age of 14 years can be employed in the construction work even if construction industry is not specified in the schedule to the Employment of children Act, 1938.  Expressing concern about the ‘sad and deplorable omission’, Bhagwati,J., advised the State Government to take immediate steps for inclusion of  construction work in the schedule to the Act, and to ensure that the constitutional mandate of Article 24 is not violated in any part of the country.

           In Labour Working on Salal Hydro Project vs. Jammu and Kashmir AIR 1984 SC 177, the Court has reiterated the principle that the Construction work is hazardous employment and children below 14 cannot be employed in this work.       

           A Child is a national asset; it is the duty of the State to look after the child with a view to ensuring full development of his personality.  Emphasizing the significance of the dignity of youth, and childhood in a civilized society, Bhagawati, C.J. observed in Sheela Barse and others vs Union of India and others (1986) 3 SCJ 423 that some years ago our country came out with a National Policy for the welfare of Children which contained the following perambulatory declaration:  “The Nation’s children a supremely important asset.  Their nurture and solicitude are our responsibility.  Children’s programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skill and motivations needed by society.  Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our large purpose of reducing inequality and ensuring social justice”.

Main features of the Supreme Court  in  their Judgment dated 10.12.96 

On 10th December 1996 in Writ Petition (Civil) No.465/1986 the Supreme Court of India, gave certain directions on the issue of elimination of child labour. The main features of judgment are as under:

–        Survey for identification of working children;

–        Withdrawal of children working in hazardous industry and ensuring their education in appropriate institutions;

–        Contribution @ Rs.20,000/- per child to be paid by the offending employers of children to a welfare fund to be established for this purpose;   

–        Employment to one adult member of the family of the child so withdrawn from work and it that is not possible a contribution of Rs.5,000/- 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.

–            The implementation of the direction of the Honourable Supreme Court is being monitored by the Ministry of Labour and compliance of the directions have been reported in the form of Affidavits on 05.12.97, 21.12.1999, 04.12.2000,  04.07.2001 and 04-12-2003 to the Honourable Court on the basis of the information received from the State/UT Governments.   

 

 

The Right of Children to Free and Compulsory Education Act:

          After the enactment of the Constitution (86th Amendment) Act 2002 the State Provided protection to the Children from the age 6 to 14 years from the child labour by providing compulsory education but it has taken another 8 years for the passage of the Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE), which was passes by the Indian Parliament on 4th August 2009, describes the modalities of the provision of free and compulsory education for children between 6 and 14 years in India under Article 21-A of the Indian Constitution.  With the enactment of this legislation India became one of 135 countries to make education a fundamental right of every child when the Act came into force on 1st April 2010.

          The first time in the history of India a law was brought into force by a speech by the Prime Minister.  In his speech, Dr. Manmohan Singh, Prime Minister of India stated that, “We are committed to ensuring that all children, irrespective of gender and social category, have access to education.  An education that enables them to acquire the skills, knowledge, values and attitudes necessary to become responsible and active citizens of India”.

          The RTE Act if implemented properly will be much effective than any other previous laws which were enacted specifically to prohibit the child labour.  It its common sense the Right to Education Act main objective is to provide the free and compulsory education to all the children in India between the aged of 6 and 14 years but it indirectly imposes a duty on the State by the term COMPULSORY that all the children between the age of 6 to 14 years must be surely educated.  So it in an indirect way throw  light on the eradication of the child labour by making education compulsory to all the children between the ages of 6 to 14 years.

COMPULSORY EDUCATION:-

          The Constitution (86th Amendment) Act, 2002 and the Right to Education Act, 2009 specifically provides that it is the mandatory and primary duty of the State to provide free and compulsory education to the children below the age of 6 to 14 years. It is indirectly restricts the children from doing any other activity when they were in the age between 6 to 14 years.  Also it provides for free education where it makes the education to be available to the poor people.  Mostly the child labour were belong the children of the poor people.  Due to their economically backward condition parents were unable to feed the children and the work of the child will also become useful to make their both ends meet in a difficult way.

          The Act clarifies that “Compulsory Education” means obligation of the appropriate government to provide free elementary education and ensure compulsory admission, attendance and completion of elementary education to every child in the six to fourteen years age group. “Free” means that no child shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing elementary education. 

          The ultimate objective of development of any country must be the improvement of the quality of life of its people.  One of the mechanisms of enhancing the quality of life of its people is acquired by means of education.  The compulsory education provided by the Right to Education Act 2009 to the children between the ages of 6 to 14 years is very much useful to enhance the quality of the people.  Child labour shall be prevented by making use of the compulsory education provision. 

Government Policies:

          So as to be in consonance with the constitutional provisions and the United Nations (UN) Declarations on the Rights of the child, the Government of India adopted the National Policy for Children (NPC) in August 1974.  This Policy provided that “It shall be the policy of the state to provide adequate service to children both before and after birth and through the period of their growth, to ensure their full physical, mental and social development.  The State shall progressively increase the scope of such services so that, within a reasonable time, all children in the country enjoy optimum conditions for their balanced growth.”  This policy does seem to admit that a child is entitle to enjoy his childhood through play, learning, getting a parental emotions, love and nutritional and health care.  Toward this the National Policy envisaged the need for “free and compulsory education for all children upto the age of 14 years, provisions for health and nutritional programmes and services, providing alternative forms of education for children unable to take full advantage of formal school education for whatever reasons, and measures for protecting children against neglect, cruelty and exploitation.”  Ironically however, the Government only lays emphasis on regulation of child labour than concentrating on abolishing it altogether.  By making use of the Right to Education Act, 2009 the provision of compulsory education is very much useful to abolish the child labour by providing free and compulsory education to all the children below the age of 14 years. 

         The provision for regulation of the child labour which is constituted in the Child Labour (Prohibition and Regulation) Act 1986 in present situation shall be need to amend as the Right to education Act enacted in 2009 is providing compulsory education to all the children below the age of 14 years.  At present situation there is no need to regulate the child labour.

          While focusing on the general development action programme, the National Policy envisaged utilization of non-formal education.  The National Commission on Labour also recommended arrangements to combine work with education through non-formal schemes.  It has also provided for linking these programmes with schemes of public libraries.  The policy identified to specific sectors of employment where the incidence of child labour is high.  It involved a six-point package to tackle the problem of child labour.  The government plans to establish special schools in these areas so as to not only provide education and vocational training but also take care of the nutritional care and needs of working children.

          The National Policy on Child Labour (1988) suggested that children employed as part of the family should be treated differently from those outside the family set-up.  Its strategy aimed at including the families of child workers in antipoverty programmes, arranging special programmes for the Scheduled Castes and Tribes whose children have to undertake wage labour and imparting compulsory formal or non-formal education to all children, particularly those employed in hazardous industries.

          The German funded programme, Child Labour Action and Support Project was launched in 1992.  The German Government had given an initial contribution through the International Labour Organisation.

           The Government is also implementing the International Programme for Elimination of Child Labour.  The Programme was launched in January 1933.  33 action programmes under this have been approved and more proposals are under consideration.  One project with an ‘integrated’ approach aims at rehabilitating 5,000 children every year from the carpet trade.  Of course, the Indian Government is spending annually Rs.10 crore on ten national level pilot projects in priority industries to wean away child labour and rehabilitate them.  The government has drafted a Bill to ensure equal wages for the minor and adult workers.  The move meant to make employment of child labour less lucrative.

          One way to minimize the incidence of child labour is to enhance the school enrollment by making proper utilization of the recently enacted Right to Education Act, 2009.  It enables the poor people to access school and attains free education upto the age of 14 years. Another recent initiative of the Indian Government is Sarva Siksha Abhiyan launched in 2001, universalizes the elementary education by community ownership.  Rajiv Vigyan Mission is also helpful to provide education for the needy children.  Rajiv Udyog Mission is taking part in providing employment to the children who are attained 14 years by ensuring sufficient training in the skilled work Project Based Plan of Action envisages starting of projects in areas of high concentration of child labour. Pursuant to this, in 1988, the National Child Labour Project (NCLP) Scheme was launched in 9 districts of high child labour endemicity in the country. The Scheme envisages running of special schools for child labour withdrawn from work. In the special schools, these children are provided formal/non-formal education along with vocational training, a stipend of Rs.100 per month, supplementary nutrition and regular health checkups so as to prepare them to join regular mainstream schools. Under the Scheme, funds are given to the District Collectors for running special schools for child labour. Most of these schools are run by the NGOs in the district.  

Government has accordingly been taking proactive steps to tackle this problem through strict enforcement of legislative provisions along with simultaneous rehabilitative measures. State Governments, which are the appropriate implementing authorities, have been conducting regular inspections and raids to detect cases of violations. Since poverty is the root cause of this problem, and enforcement alone cannot help solve it, Government has been laying a lot of emphasis on the rehabilitation of these children and on improving the economic conditions of their families.  

The coverage of the NCLP Scheme has increased from 12 districts in 1988 to 100 districts in the 9th Plan to 250 districts during the 10th Plan.

 Strategy for the elimination of child labour under the 10th Plan:

        An evaluation of the Scheme was carried out by independent agencies in coordination with V. V. Giri National Labour Institute in 2001. Based on the recommendations of the evaluation and experience of implementing the scheme since 1988, the strategy for implementing the scheme during the 10th Plan was devised. It aimed at greater convergence with the other developmental schemes and bringing qualitative changes in the Scheme. Some of the salient points of the 10th Plan Strategy are as follows:

  • Focused and reinforced action to eliminate child labour in the hazardous occupations by the end of the Plan period.
  • Expansion of National Child Labour Projects to additional 150 districts.
  • Linking the child labour elimination efforts with the Scheme of Sarva Shiksha Abhiyan of Ministry of Human Resource Development to ensure that children in the age group of 5-8 years get directly admitted to regular schools and that the older working children are mainstreamed to the formal education system through special schools functioning under the NCLP Scheme.
  • Convergence with other Schemes of the Departments of Education, Rural Development, Health and Women and Child Development for the ultimate attainment of the objective in a time bound manner.  

The Government and the Ministry of Labour & Employment in particular, are rather serious in their efforts to fight and succeed in this direction. The number of districts covered under the NCLP Scheme has been increased from 100 to 250, as mentioned above in this note. In addition, 21 districts have been covered under INDUS, a similar Scheme for rehabilitation of child labour in cooperation with US Department of Labour. Implementation of this Project was recently reviewed during the visit of Mr. Steven Law, Deputy Secretary of State, from the USA. For the Districts not covered under these two Schemes, Government is also providing funds directly to the NGOs under the Ministry’s Grants-in-aid Scheme for running Special Schools for rehabilitation of child labour, thereby providing for a greater role and cooperation of the civil society in combating this menace. 

Elimination of child labour is the single largest programme in this Ministry’s activities. Apart from a major increase in the number of districts covered under the scheme, the priority of the Government in this direction is evident in the quantum jump in budgetary allocation during the 10th Plan. Government has allocated Rs. 602 crores for the Scheme during the 10th Plan, as against an expenditure of Rs. 178 crores in the 9th Plan. The resources set aside for combating this evil in the Ministry is around 50 per cent of its total annual budget.  

The implementation of NCLP and INDUS Schemes is being closely monitored through periodical reports, frequent visits and meetings with the District and State Government officials. The Government’s commitment to achieve tangible results in this direction in a time bound manner is also evident from the fact that in the recent Regional Level Conferences of District Collectors held in Hyderabad, Pune, Mussoorie and Kolkata district-wise review of the Scheme was conducted at the level of Secretary. These Conferences provided an excellent opportunity to have one-to-one interaction with the Collectors, who play a pivotal role in the implementation of these Schemes in the District. Besides, these Conferences also helped in a big way in early operationalisation of Scheme in the newly selected 150 districts.

                The Government is committed to eliminate child labour in all its forms and is moving in this direction in a targeted manner. The multipronged strategy being followed by the Government to achieve this objective also found its echo during the recent discussions held in the Parliament on the Private Member’s Bill tabled by Sri Iqbal Ahmed Saradgi. It was unanimously recognized therein that the problem of child labour, being inextricably linked with poverty and illiteracy, cannot be solved by legislation alone, and that a holistic, multipronged and concerted effort to tackle this problem will bring in the desired results. 

Forward Steps:-

          The ideal scenario on Child Welfare would be when every child enjoys the fullness of childhood through education, recreation and adequate health facilities.  It is impossible to attain these facilities by the child labour.  All the children were able to enjoy the completeness of childhood only

  • when the true conscience of the nation is awakened;
  • when all the policy makers and the bureaucrats take the issue of child labour seriously and commit themselves to the cause of the holistic development of every child in India;
  • when the employers would not even contemplate the idea of employing a child for any work which might deny the child of a normal childhood;
  • when all the parents will become aware of the jeopardy of child labour and take upon themselves the duty of caring for the physical, social and psychological and mental development of the child;
  • When all the Policies laid down by the Government under Various Plans and Laws were implemented properly ;
  • The government and the legal persons must conduct campaigns to make the people educate about the legal provisions existing for the abolition of the child labour.

     References:

  1. Baland, Jean-Marie and James A. Robinson (2000) ‘Is child labor inefficient?’ Journal of Political Economy 108, 663–679
  2. Basu, Kaushik, and Homa Zarghamee (2009) ‘Is product boycott a good idea for controlling child labour? A theoretical investigation’ Journal of Development Economics 88, 217–220
  3. Bhukuth, Augendra. “Defining child labour: a controversial debate” Development in Practice (2008) 18, 385–394
  4. Emerson, Patrick M., and André Portela Souza. “Is Child Labor Harmful? The Impact of Working Earlier in Life on Adult Earnings” Economic Development and Cultural Change 59:345–385, January 2011 DOI: 10.1086/657125 uses data from Brazil to show very strong negative effects–boys who work before age 14 earn much less as adults
  5. All India Reports 1983, 1984, 1996, 1997.
  6. 10th Indian National Five Year Plan
  7. Humbert, Franziska. The Challenge of Child Labour in International Law (2009)
  8. Humphries, Jane. Childhood and Child Labour in the British Industrial Revolution (2010)
  9. ILO, Investing in every child: An economic Study of the Costs and Benefits of Eliminating Child Labor

10.  www.vvg.nli.org

11.  Kirby, Peter. Child Labour in Britain, 1750-1870 (2003)

12.  labour.nic.in

13.  Ravallion, Martin, and Quentin Wodon (2000) ‘Does child labour displace schooling? Evidence on behavioural responses to an enrollment subsidy’ Economic Journal 110, C158-C175