Child Labor -An Enigma,Still Requires Introspection

Adrish Guha Majumder

ABSTRACT

Taking a view of the present scenario of child labor in India, related laws and its shortcomings, the article deals with the subject of child labor which is an enigma now a days in India and in the world scenario. It introduces itself with the definition of child labor, its causes, practice, problems and consequences of the same. It takes into consideration the various measurements taken to curb this problem. It canvasses the legislative, administrative and judicial actions . It briefly explores through the provisions specially for the child welfare, directive principles and the specific child labor laws as a part of the legislative actions .It encompasses the national law commission reports on child labor and the international conventions . It talks about the 11th five year plan enacted to curtail the evils of child labor. It cites the examples of the ILO (international labor organization) reports and views on the concerned topic under administrative actions . As a matter of confirmation and implementation of the laws, the article converse about the previous court cases as a part of the judicial actions. These laws were enacted but unfortunately it is not effective because of the half hearted measures and lack of implementation. It cites various examples where it can be seen that, instead of various measures taken , the problem of child labor is increasing paying no heed to the measures. The law has been lacking in constant work-force and it is very important to combat the main problems that are prevailing now a days and thus it need to be amended and modified according to the situation. The article itself gives some remedies and suggestions to restrain the problem to some extent as possible with the help of law.

 

1. INTRODUCTION

‘Share is no trust more sacred than the one the world holds with children. There is no duty more than ensuring that their rights are respected, that their welfare is protected, that their lines are free from fear and want and that they grow up in peace – Kofi A. Annan

 

i. What is the Importance of child welfare in the present civilized society?

In a layman language, civilized society means a society or a community which is enriched with substantial amount of culture in it. Now this amount of culture , its growth and development depends on the well being of a child. A child is full of vigor and this should be nurtured to get the best benefits. They should be provided with congenial atmosphere around them for their proper growth.

The child is a soul with a being, a nature and capacities of its own , who must be helped to find them , to grow into their maturity, into fullness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of a nation

It should be ensured that behind the mask of social service or upliftment and evil design of child trafficking is not lurking. It is the duty of the State to ensure a safe roof over an abandoned child

ii. What is child labor?

Generally child labor is the activity they perform ( objectionable) , which exploits them mentally, psychologically, physically. There are no universally accepted definitions of child labor, it varies. According to some social scientists child work is always unobjectionable, suppose a poor child is working in a stationery shop helping the owner, then it is not child labor but if in this case this little child is not paid or has been forced by the owner to do other hectic tasks then the child becomes a child labor. The moment the activity leads to the exploitation of the child resource then it becomes rigidly objectionable. According to U.N conventions child labor means all the activities regarding soldiering and prostitution. But in this case prostitutions is not considered as child labor because these are the utter illegal sources and this is only practiced in case one do not have any other options to choose.

A large number of children work in cottage industries producing carpets, matches, firecrackers, bidis, brassware, diamond, glass, hosiery, hand loomed cloth, embroidery, leather goods, plastic, bangles and sporting goods

iii. Classification of child labor

Child labor can be classified into child labor, street children, bonded children, working children and children for sexual exploitation as given by the 11th five year plan by the national commission for protection for child rights.

A recent state wise figure reveals that Andhra Pradesh topped the list with over 19 lakh child labor followed by Madhya Pradesh, Maharashtra, Uttar Pradesh, Karnataka and Bihar, each accounting for over two lakh

iv. Who is a child?

Like the definition of child labor , child also don’t have a particular precise definition. An universal definition of child was given by the constitution to fit all the situations and the definitions are allowed to vary with the laws, contexts and situations .

International conventions describe ‘child’ as any person who is under 18 years of age.

A child is one who has not completed 15 years of age

‘Child’ means a person who has not completed his fourteen year of age . Again the census also treats persons below the age of fourteen as children. The constitution of india debars a child below the 14 years to be employed in any factory or mine or any hazardous employment. ‘Child’ means a person who, if a male has completed 21 and if a female not completed 18 years .

v. Issues with child labor

Stunted growth for future generation: children are exploited only when they are being forcefully employed to any objectionable tasks. This really hampers the decent growth of the child and thus it do not give the space to build a bright future generation

Effecting human rights: in our legislation there are the constitutive rights of a child. Again in there are certain rights as in human beings are born free, right to life , liberty and security , right to recognition , no one should be subjected to torture or cruel, inhuman or degrading treatment or punishment . Right to survival, right , property , promoting high standards of health and nutrition , mental health should be protected , right to play and leisure

 

Effecting RTE(right to education): In the Indian constitution, article 45 deals with the compulsory education that the state shall Endeavour to provide early childhood care and education for all children until they complete the age of six years. Again in article 46, it deals with the promotion of educational and economic interest of scheduled castes, scheduled tribes and other weaker sections. Clearly, child labor violates the articles concerned.

Other than that the serious consequences are inability to harness human resources, adult unemployment, perpetuation of poverty, increased illiteracy , affecting the health and nutrition of the child, perpetuation of ill-treatment

 

Child trafficking:

In this era child trafficking is at the grass root level, child trafficking is the transportation, transfer, recruitment of children. This is generally done by act of coercion. They are trafficked generally so that the owner can have the work done by them without proper payments. Child labor is a part of the child trafficking.

Due to this, judicial activism has taken some steps to confront child trafficking and thus there was immoral trafficking act 1986. In a certain case, the H’onble High Court of Bombay observed that the traffic in children is not confined only to what larger scale than innocent Members of this House may be aware – in what is known as White Slave traffic, namely, the buying and selling of young women including minor girl for export or import, from one set of countries to another; and their permanent enslavement or servitude to an owner or proprietor of the establishments of commercialized. In addition to this it was held by H’onble Supreme Court that a proper cell be created by Women and Child Welfare Department of the State of Maharashtra in order to rehabilitated victim of trafficking in society and proper vigilance that should be acted upon periodically

In another case it was observed that children, who are being likely to be grossly abused, tortured or sold for the purpose of sexual abuse or illegal acts they will have to be produced before the Child Welfare Committee. Furthermore, the H’onble High Court of Bombay gave directions to state for Rehabilitation these victims of trafficking

Another gross problem of child labor leads to sexual exploitation. This generally happens with the young female child who is treated as mere goods and is transferred to brothels every year and they are only used as the characters of the sex industry prevalent in India. For this immoral trafficking resulting to prostitution there is one law enacted ‘suppression of immoral traffic in women and girls act of 1956(SITA)

This child trafficking problem cannot be restrained in isolation. The judiciary should take some survey about the subject to get the perfect figure of the child trafficking cases happening. it is a pernicious social ill, so it needs very stringent regulation governing it , the government as well as the non-governmental organizations should be a rigid watchdog for the same.

 

LEGISLATIVE MEASURES-

The problems of child labor are prevailing for many years even times before the drafting of the constitution. So the role of constitution as a major part of social justice also very much includes granting justice to the children resulting in the incorporation of some special provisions to ensure justice to the children.

‘Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’(article 15). But clause (3) of article 15 serves an exception to the respective article. It states that the ‘nothing in this article shall prevent the state from making any special provisions for women and children.

Right to education has been made as a fundamental right (article-21A) by constitution (86th amendment) Act 2002. In this context the court observed that right to basic education is implied by the fundamental right to life (Article 21), when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to Endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14 . So, the child is also entitled to enjoy all the fundamental rights.

Prohibition of traffic in human beings and forced labor (article 23). Though this article do not talk specifically of children but they are necessarily included because now a days children are the most trafficked . their exploitation results in the violation of the above article.

Prohibition of employment of children in factories(article 24) . no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment as an additional security ensuring the proper justice to a child. In this context the Supreme Court directed that the employers of children below 14 years must comply with the provisions of the Child Labor (Prohibition and Regulation) Act providing for compensation, employment of their parents / guardians and their education

 

DIRECTIVE PRINCIPLES OF THE STATE POLICY

The underlying principles of the directive principles of the state policy is ‘ to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution’ . it is also under the directive principles of the state policy where it has been tried to come into force some provisions in part IV to promote justice and equality in life, also in case of child labor

That the health and strength of workers , men and women , and the tender age of children are not abused and that the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength (article 39e).

That the children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment (39f). in this context there was a case where the main issue under consideration of this case was relating to welfare measures for laborers working in mining leases. The court laid down comprehensive measures for the rehabilitation and supportive working environment of the laborers working in mine leases

Provision for early childhood care and education to children below the age of six years( article45). Promotion of the educational and economic interests of scheduled castes, scheduled tribes and other weaker sections of the society. (article 46)The children are trafficked and are worst sufferers who belong to these category of people because of the poverty and backwardness they face very often, so this will be effective in facing the problems child labor also.

Duty of the state to raise the level of nutrition and the standard of living and to improve public health (article 47). As this principle is there to effect the better health of the public very much directs towards the better health of a child also, because this is very inevitable in case of children.

 

CHILD LABOR LAWS

THE CHILDREN (PLEDGING OF LABOR) ACT, 1933

extended over all India except Jammu and Kashmir, but after sept1,1971 it has been executed to Jammu and Kashmir also. It brought into light the conditions under which the children worked. It has been very often noticed that the labor of the children is being pledged by their parents in lieu of some benefits, basically economic benefits. main object of this act is to eradicate the evils arising from the pledging of child labor generally done by their parents or employers in lieu of certain loans and advances. After this enactment, any person making such type of agreement should not taken into consideration any more rather than they will be subjected to penalty under this act.

THE EMPLOYMENT OF CHILDREN ACT, 1938

is applied to whole of India. To prevent overtime, unhealthy environment and hazardous employment of children, it was enacted .The act fixed the minimum age at which children work in passengers, goods or mails by rail or in the handling of the goods at dock wharves or quays at 13 years. The act also prohibited employment of children under 15 years of age in occupations connected with the transport of goods passengers or mail on railways. The minimum age for handling goods for stocks was raised from 12 to 14 years which was the age fixed by Indian ports act 1908. The period of rest was to include at least 7 consecutive hours between 10 pm and 7 am, prescribed in it.

CHILD LABOR ( PROHIBITION AND REGULATION) ACT 1986

was actually enacted to regulate the working conditions under which the children work under exploitative conditions. This act prohibited the children from work under the age of 14 years. According to section 3 of the act, it prohibits the children to work in certain occupations and environment as specified in the schedule of banned occupations as per part A of the schedule to this act. Part B of this act has added one more process into the existing list and that is ‘building and construction industry’ all are same as the existed one. There is also some mentioned process where no child is permitted to work as per section 2 of the act. Punishments are also provided by section 14 of this act where there is fine up to twenty thousand in case of any employments contravening section 3 of this act. Any police officer has the right to file a complaint of an offence under this act in any court of competent jurisdiction

FACTORIES ACT, 1948

defines a child as one who has not completed 15 years of age. This is an absolute prohibition of employment of a child who has not completed his fourteenth year. The acts prohibits a child to do certain works as per section 22(2) of the act. Prohibition of a young child in employing or dangerous machines as per section 23 of this act. Prohibition of employment of women and children near cotton openers as per 27 of this act. Provides for token to be supplied by employers and kept by non-adult workers as per section 68. It also provides for certificate granted to an adolescent workman that he is an adult as per section 70. Specific working hours for children as per section 71. Section 75 of this act also empowers the inspectors to require any such person for re-examination by surgeon and he may prohibit the employment.

MINES ACT, 1952

includes the excavations where some obtaining or extraction is going on including all bearing, bore-holes and oil well, all levels of inclined plans in the course or being driven in or adjacent to and belonging to a mine. It strongly prohibits the children to perform this type of work. He/she is only then allowed when they are above 16 years of age and they have a medical certificate of their own which is only valid only for 12 months as per 43 of the act. It also provides working hours for adolescents as per section 44 of this act. It also instructs and empowers inspector to take medical examination of a person employed in a mine if a child or adolescent. Section 68 of this act provides for penalty for employment of children under 18 years of age which contravenes section40 of this act which prohibits the employment of a child under the age of 18 years and the convicted is punishable with fine up to five hundred rupees.

MERCHANT SHIPPING ACT, 1958

prohibits employment of children below 15 years on sea going ships. Here no person(young) should not work as a stoker or trimmer as per section 110. Medical inspection is mandatory as per section 111. It also empowers central government to make rules respecting the employment of young persons. As per section 113 of this act.

APPRENTICE ACT, 1961

is to regulate and control the training undergone by the apprentice in the course of business. As per the act an apprentice is ‘as a person who is undergoing apprenticeship training in a designated trade in pursuance of control of apprenticeship’ the act prohibits any person to go internship who is below 14 years of age. In this context, the government has identified 56 trade for the purpose of this act.

BIDI AND CIGAR WORKS (condition of employment) ACT, 1966

also defines a child as a person who has not completed 14 years of age. Section 24 of this act ensures the enforcement of better work conditions for children connected with the manufacturing of cigar and bidi. In this act the children between 14 and 18 years are prohibited to work between 7 pm and 6 am as per section 25 of the act. Section 14 of the act also provided for maintenance of crèches and other facilities for children under the age of six years of female employees. Canteen, first aid, cleaning and ventilation are also incorporated in this act.

MOTOR TRANSPORT WORKERS ACT, 1961

prohibits the children under 15 years of age in any motor transport undertakings. In case of adolescent it also provides for certificate of fitness as per section 23 of this act and it also empowers inspectors to take medical examinations of employed adolescent as per section 24 of this act.

Legislative measures have been also taken to ensure the payment of minimum wages to labor. There are two central laws which impose certain obligations on employers and management in the field of wages. Payment of wages act, 1936 ensures regular and prompt payment of wages to employees and prevents exploitation of wage earner against arbitrary deductions and fines.

The minimum wages act 1948 imposes certain obligations on employers and managers in the field of wages and requires the central and state government to fix a certain minimum amount of wage in certain scheduled employments. The act also seeks to prevent ‘sweated labor’ to prevent the exploitation of employees and secure them in the enjoyment of minimum wages. This act ensures justice to those child labor who are not paid properly under coercive conditions

BONDED LABOR SYSTEM (ABOLITION) ACT, 1976

provides the abolition of bonded labor system with a view to preventing the economic and the physical exploitation of the weaker section of the society. As amended by the bonded labor system act (73 of 1985) section 4 of the act declares abolition of bonded labor system and lays down that the system shall stand abolished and every bonded labor shall on such commencement stand freed and discharged from any obligation to render any bonded labor. Enforcement of bonded labor also made punishable under section 16 with imprisonment for a term which may extend 3 years with fine which may extend to two thousand rupees.

Section 371 of IPC provides against habitual dealing of slaves in case of imports, exports, buys, sells should be punished with life imprisonment or with imprisonment of either description for a term not exceeding ten years and should also be liable for fine.

INTERNATIONAL LABOR ORGANISATION AND CHILD LABOR

ILO (INTERNATIONAL LABOR ORGANISATION) COMBATING CHILD LABOR

The International labor organization was set up in 1919 under the League of Nations and has been playing an important role in combating child labor. Mainly it has been focusing on five main issues like prohibition of child labor, protecting child labor at work, attacking the basic causes of child labor, helping children to adapt to future work, protecting the children of working parents .

The general conference of ILO as WORST FORM OF CHILD LABOR CONVENTION, 1999 considers the need to adopt various instruments so as to combat child labor, Effective elimination of the children working in such conditions and provide for their social rehabilitation, deciding upon some certain proposals with regard to child labor. In article1 it is stated that each member should take immediate effective measures to secure the elimination of child labor. The child shall apply to all persons who is under the age of 18 years (article 2). All forms or similar to slavery, trafficking of children, debt bondage, prostitution of a child, pornographic activities, trafficking of drugs etc. are termed as the worst forms of child labor as per article3. The members should establish and design measures to monitor the implementation of the existed provisions, the action, measures should be in consultation with proper government institutions to make it more relevant and finally the formal ratifications of the conventions should be communicated to director-general of international labor office.

After the widely ratified convention against the worst form of child labor, the ILO has been well equipped to multiple challenges involved by trafficking process. It takes on Special Action Programme to Combat Forced Labor (SAP-FL) and International Programme on the Elimination of Child Labor (IPEC). At that time the main concern of public was the then trafficking of the young female child from Albania, Moldova and Ukraine. The coercion by the traffickers on the female children was really very repulsive, even today also in every parts of the world a stringent investigation can bring into light thousand of these cases regarding child trafficking. One of the benchmark is the forced labor convention no.29 of 1930, this provides a clear definition. Under the convention a forced labor is that ‘all work or services exacted from any person under the menace of penalty and for which the said person has not offered voluntarily’ child labor forms a very major part in violating the human rights. Now a days it is surging rapidly. Even children are trafficked across borders to perform some other kind of work also. There are four major action steps taken by ILO like data collection and analysis, policy development and direct support including educational opportunities, community mobilization and outreach. Community mobilization is very important for proper monitoring the problems, it means community level governance for example in Philippines there are barangays are effective community mobilization only for children. This helps in clear positioning and implementation of plans to combat the problems.

The international labor organizations adopted the minimum age recommendation act, 1973 and have discussed certain elements about the topic. It gives priorities to planning and meeting the needs for children through all the national development policies regarding employment oriented programmes, ensuring better living standards, child allowances, proper educational opportunities. It also speaks about the minimum age that should be fixed in all kind of economic activities. The members should take as their objective to raise the age standard to 16 as per article 2 of the act. The conditions of employments should be measured whether they are satisfied or not. They should keep a watch whether the children are being undergoing through practical training session to keep a very safe and protective environment.

India is a signatory to the Universal declaration of human rights (UDHR), 1948. This is a common standard for all people and nation which comprises of human rights and fundamental freedom. It defines about the right of the human being to born free, equal dignity and rights and the spirit of brotherhood should also be present as per article 1. It speaks about the right to life, liberty, security of a person. Exposure to slavery and servitude shall be strongly prohibited. It is not acceptable for arbitrary detention and exile of any person. One is entitled in full equality to a fair and public hearing by an independent and impartial tribunal according to article 10 of the act. Everyone has the right to protection against any interference against his/her privacy, family or home. He/she has the full right to leave his/her own country and can return also according to the will. Everyone has the right to nationality and no one should be intentionally deprived of the nationality as per article 15 of the act. Everyone has the right to his own property and no one can be deprived of his property as per article 17 of the act. Everyone has the right to freedom of opinion and expression. They have the right to peaceful assembly and association and there should not be any compulsion to belong to an association. There is the right to social security for the members for the same. Including reasonable limitation of working hours and periodic holidays with pay, everyone has the right to rest and leisure as per article 24 of the act. With the adoption of the act, the human rights have been intensely implied for the betterment of all the human beings, specially the children who suffer the most.

The general assembly of the United Nations adopted the united nation declaration, 1959 on the rights of child where it mainly discussed about the physical and mental immaturity of a child needs special safeguard and cares before as well as birth so that the child can have a happy childhood enjoy for his good and for the society. In the principle1 it is said about the right to enjoyment of rights without any discrimination. It ensures a child’s right to special protection so that they can develop morally, mentally and physically. The child has the right to adequate nutrition and on the other hand he/she has the right to receive the early childhood care for survival, growth and development. The children who are physically disabled should be offered proper treatment and provided with proper educational opportunities. Free education is compulsory for every child, they must be provided with free primary education. There should not be any discrimination for children on the basis of race, caste. Status. Economy. There should be understanding, tolerance and brotherhood between them.

ADMINISTRATIVE ACTIONS

POLICIES FOR CHILDREN

The government of India has also adopted the National policy for children in 1971. It sets out the measures the proposals made by the government of India, to adopt the attainment of objectives that was set out earlier. It also includes actions that are designed to protect children from neglect, cruelty and exploitation. It mainly gives high priority towards the maintenance, well being, and education for the destitute children. It also stresses upon the vital role of the voluntary organizations that plays a vital role in imparting proper education, health services and social welfare to such children. The government should encourage these organizations that can help in the betterment of children. There are no. of programmes for the same. For example children from weaker section of society need special care, attention. Postulation for children who are deprived of the educational opportunities. Programme no. 7 directs the quality of opportunity. That it should be provided to children of all sections of the society including scheduled caste and scheduled tribes. Children with physical disabilities should be taken proper care with proper treatment, education and rehabilitation. Thus we can see that this policy is very effective and the international principles for the development of children are of utmost importance.

 

The National child labor policy, 1987

envisages strict-enforcement of the child labor (prohibition and regulation) act, 1986 for betterment of the condition of the child labor. It believes it in contemplating legal actions plans, general welfare and development plans on child labor and project based plan of action. Ten projects were taken to cover the sivakasi match industry, surat polishing industry, precious stone polishing industry of jaipur, Firozabad glass industry, brassware industry of Moradabad, carpet industry of bhadohi, lock making industry of Aligarh, carpet industry of Jammu and Kashmir slate industry in Madhya-Pradesh. Then the policy proposed that around 30000 children should be withdrawn and should be taken care by the government. The policy also increases this type of enforcing to create socio-economic situations which could diminish incidents regarding children being sent out to work.

 

The Convention of the right of the child (CRC), 1989

was unanimously adopted by the general assembly of the United Nation. The government of India ratified the convention. The CRC deals with the individual rights of the children less than 18 years of age to develop with full potential, free from hunger and want, neglect, exploitation and other abuses. It extends its provision to protect the child’s economic, social and cultural rights. The age of the child is specified (less than 18 years of age). The convention speaks about the parental guidance where the parents or the legal guardians have to provide the children in manner consistent with the evolving capacities of the child and guidance in the exercise rights of the child recognized in the conventions. The child should be registered immediately after birth and it has the right to nationality as per the convention. By this convention a child shall not be separated from its parents against their will and state parties should respect the right of the child who is separated from their parents to maintain personal relations and direct contact with both the parents on a regular basis except it is contrary to the child’s best interest. The child should be given the right to express their views, they have the right to share their own judgment accordingly and they should be given the weight age according to their level of maturity. The child has the right to freedom of association and peaceful assembly. Other than that there are articles where it has been discussed that the children should be protected from sexual abuse and economic exploitation, the child has the right to standard of living, social security and right to education.

The government of India has adopted the National Charter For Children, 2003 to reiterate its commitment towards eradicating the evils of child labor and exploitation. The intention of the charter is to secure the children the inherent rights and to ensure the healthy growth and development of a child which includes survival, life and liberty, promoting high standards of health and nutrition (the government should take a notice about the implementation of the health facilities and state should take the measures to implement proper health care and should aware preventively about diseases), assuring basic needs and supply( the government is there to ensure proper security for supply and needs for example- the authority should take the steps in supplying the basic materialistic needs by a street child), play and leisure, equality, freedom of expression, freedom to be in association, peaceful assembly and proper care for the children with disabilities.

 

The National Plan of Action for Children, 2005

makes out 12 key areas which should be grabbing greatest attentions. They are reducing infant mortality rate, reducing maternal mortality rate, reducing malnutrition among children, achieving cent percent civil registrations of the new born, complete abolition of female feticide and child marriage, all legal and social protection for children and monitoring, reform and review of the proposed and the implemented plans for the abolition of the problem.

 

The Integrated Child Development Service (ICDS). 1975

plays a unique role in the betterment of the life of children, they provide various programmes for the children. It was developed to improve the nutritional and health status of children in the age-group 0-6 years, to lay the foundation for proper psychological, physical and social development of the child, it aims at reducing incidence of mortality, morbidity, malnutrition and school dropout, achieving effective co-ordination of policy and implementation amongst the various departments to promote child development and to ensure about the proper health and nutritional needs of the children. They arrange various programmes like

Nutrition including supplementary nutrition: in this nutrition they generally monitor the growth and surveil the nutrition. The child in each family communities are weighted often with their age and they have with them the cards (measuring weights with age) , therefore it is easy for them to asses the nutritional status. They visit every family and there is a provision within themselves for feed supporting to families.

Immunization: it includes proper immunizations to the pregnant women, infants for various diseases that can affect them like tuberculosis, tetanus, hepatitis etc. thus this section of the policy is for prevention and precautionary measures for the diseases

Health checkups: proper and regular health check-ups are conducted for the betterment of the health of a child. They are transferred to their sub centers for the better governance on the concerned arrangements.

Non formal pre-school education- they arrange a village courtyard for the children. In these arrangement normally joyful activities takes place resulting in the pre-school development of a child. Generally it is a preparation towards the school and these mainly aim at the optimal development of a child.

They also arrange funds for the state (100 % in nutrition). Actually they are resource sponsored and they provide funds to the state. When the states are out of fund then they finance the state, further there are many conditions for their funding process.

THE ELEVENTH FIVE YEAR PLAN:

The 11th five year plan aims at better investment in the educational sector. It is proposed to allocate 1.25 lakh crore for education which is a major leap from 30000 crore of the last plan. It is expected for the plan to cover a its previous achievements and to ensure inclusive growth curbing the negative sections. But merely plans won’t fetch the absolute motive; it has to be perfectly implemented through all out the proposed sectors. Previously it was claimed to have spent through various ways for the development at elementary levels but there was no positive results for the same. The increment of fund is not the only step that has to be done; all the proposed plans fail only when there is lack of plan of allocation of resource like unless a previous defective structure is not refined then it is useless to invest for the establishment of a new unit. The children here are given training, nutrition and regular health check up. In this plan there is a condition for amendment of the child labor act 1986, that there should not be the use of world ‘regulation’ because in this case the child labor negotiation should be non-negotiable, the provisions must be increased and should be stricter. The child labor should not be tolerated any more. New child labor eradication policy should be revised, the child labor has to be abolished in all forms and children enjoying the right to education are non-negotiable. In case of national child labor programme, it also should be revamped in case of migrated students. The intra state migrated students should be provided with additional transitional educational centers (TEC). This should be the joint effort of the state. The 11th five year plan comes up with the topic of social mobilization where the children can be prevented from all the work force. The children should go to government formal schools rather than leaving the home for full day work. For the children to leave work , so that they can get the free elementary education , the prime need is the connection between all the departments like labor ,police ,education ,youth affairs, panchayti raj.. the synchronization between all those will actually bring the synergy to achieve the real motive.

 

JUDICIAL ACTIONS

The role of Indian judiciary and judicial interpretation has been very remarkable now a days because of the increasing statutory invention in the present scenario and the judiciary is very much successful in giving the justice to the needy.

The Supreme Court is the apex court and has been assigned a very important role, and constituted as a guardian of the constitution which is the yardstick of the ground norms of the legislation . It is the duty of the judiciary for the establishment of proposals through which the society or the nation can move forward very effectively. It is a matter of pride that the Indian judiciary system has been able to inaugurate the trust of the common people that is the reason why the people bring their grievances to the court. In case of child labor relating issues or issues affecting many child right infringements, relating to child exploitation etc. the courts have many cases which actually go side by side with the constitution and makes the respective law effective.

The child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so for as the society is concerned. In this case, the framers were aware about the prohibition of the child in national building work unless he/she receives the primary education and then there was the insertion of the article (article45) where it is ensured to provide the free education to the children. They should also be provided with proper care and should be financially helped like they should get the minimum wages.

There was another case regarding the employment of children in carpet industry in the state of Uttar Pradesh. The appellant proposed for the proper investigation of the fact. After observation the apex court interpreted that the child of today cannot develop today unless the assurance of physical and mental health. The court held that the every child irrespective of caste, age, birth, colour should have the right to health, well being and education.

In another case there was same observation where the children were subjected to right to health, meaningful right to life with fundamental rights .

This is the reference of another case where apex court receives a letter regarding the workers who were mainly related with the manufacture of beedi and cigar, the children were not given proper wage, shelter and protection which generally leads to child resource exploitation. When the court ordered the society to provide a report of the activities, then it was found that there were many defects in the report. later it was observed that the manufacture of this kind of things leads to hazardous effect on the concerned. The court has adjourned the case for around 8 weeks because of the ineffective implementation of the law and later designing measures to combat this problem was taken by the state, central and the counsel for the employers

There was a case in chattisgarh where a girl child was seen in manufacturing a beedi in her house. This case was taken to court and under the child labor prohibition act it is an offence for sure but it was yet to prove that the age of that girl was less than 14 years. There was no medical or valid argument to present that girl with in 14 years of age. Other than that, beedi manufacturing has two parts. One is to roll the bidi and other case is to supply the raw materials in case of the latter one, the raw material provider enroll themselves legally and there ia no offence in it but in this case as it was not proved that the girl was not below 14 years of age, that’s why the proceedings were quashed.

The same as the above case was also there in the state of U.P where a child was seen in the carpet industry working when the inspection was made by the enforcement officer but again the age proof of the child was not produced by the authority as a result the conviction was unsustainable.

Now we will discuss about a case in Madhya Pradesh where a petitioner is challenging when a fine of RS.20000 was imposed on him for child labor of 14 years of age. Generally prohibition of employment of children in factories says that a single child shall not work with an age less than 14 years of age and as the petitioner was employing a child who is 14 years of age is an offence indeed. So the challenge was not even taken into consideration.

In this case a child below the certified age was employed and was investigated by an officer whose appointment was visualized by section 17 of the child labor prohibition act, 1986 and anything which is contravening the child labor prohibition act, leads to the imposition of penalty of RS 20000 ( twenty thousand) which could be deposited in a fund of child labor

Very recently a petition was filed by the NGO ‘Bachpan bachao andolan’ regarding the prohibition of the children working in circus as mere labours. The supreme court issued a notification prohibiting all the children from working in circuses. It was under article 21 about the fundamental rights of these children.

The Indian government has banned the employment of children under age 14 as domestic servants or in hotels, restaurants or small tea shops in a bid to protect the rights of the children. It also prohibits the children from working in any motels, bars or any other recreational activities

Earlier in case of child labor, the sufferers don’t have that access to the court to express their grievances but now a child labor can easily reach the court and demand for his fundamental rights. This is only because of the locus standi of the court.

In a certain case, it is seen that the supreme court that the employment act of India does not feature the construction work because this is a type of hazardous work and under article 24 one under the age of 14 years is prohibited to act in such activities

SARBHA SIKHSA ABHIYAN

The scheme was adopted by the government of India to provide free education to all under 6 and 14 years of age. This is tagged with the state government to exercise the scheme of elementary education effectively towards every parts of India. Recently the scheme aims at opening new schools in primitive remote places. Not only opening schools they also develop the infrastructure, proper fooding facilities, drinking water, sanitation etc. they are now recently working on to introduce the computer education in the course to increase the quality of education to a very contemporary level.

MID DAY MEAL SCHEME

The concept of mid-day meal originated from a saying of a boy when he said that he will only go to school if he will be provided with food the initiative was taken by the state of Karnataka and later it was stated by the Supreme Court of India that it is a direction to all of the state government to ensure the mid day meals in all types of primary schools in India. Thus it helps to encourage the elementary primary education.

CONCLUSION

HALF HEARTED MEASURES: LACK OF IMPLEMENTATION AND REMEDIES:

After discussing about the measures and actions taken in form of administration, legislation and judicial we can easily interpret that India has really been successful in designing the laws, but that laws are only laws when they are properly implementation. Its like having all the plans without organizing and hard work which thereafter plays an important role in the happening of things. The stark reality is that, if we look India, then we could see that the problem of child labor has no where decreased and still prevalent in the nation affecting the future generation badly. Children are now also found in roadsides, coal mines, industries subjected to exploitation mentally, physically and psychologically. According to one estimate, more than 20 per cent of India’s economy is dependent on children, the equivalent of 55 million youngsters under 14 . Some recent current issues are discussed below

1. Child workers, some as young as 10, have been found working in a textile factory in conditions close to slavery to produce clothes that appear destined for Gap Kids, one of the most successful arms of the high street giant. Speaking to The Observer, the children described long hours of unwaged work, as well as threats and beatings. The discovery of the children working in filthy conditions in the Shahpur Jat area of Delhi has renewed concerns about the outsourcing by large retail chains of their garment production to India, recognized by the United Nations as the world’s capital for child labor .

2. A City-based Child line, a 24-hour helpline for children in distress, rescued 116 children from serious abuse and provided shelter to 46 in 2011. The number of cases of child trafficking, abuse, child labor and beggary increased during 2011 in comparison to 2010, said a report released by the same helpline, which completed 11 years of operation on Monday .

3. In Goa there are around 100 child labors, a prevalence of tourism related sexual abuse and child trafficking. In Goa there is children act 2003 states that the children have to be given free education up to 7 years of age. But up till now there is no such action to do so. There was even a plan of action taken to eradicate child labor in Goa but no survey has been taken already .

4. Another case was there where a boy named ranjith with other 9 children was trafficked to Kerala from west Bengal. They worked in a gold shop at thrissur. They worked constantly for around 16 hectic hours and in that case they were given very low amount of food and money as their reward. They were beaten also in case of any disorder .

5. This is a case about child trafficking. A 17 year girl named as Rani was married to a 40 years old man for rs.10000. After his parents have died, she was got married. One day she went to the police station to complain about her property dispute, she was sexually abused by the police officer. Gradually, she was introduced to many people after when she was trafficked to many places. In this case rani was at the same time sexually abused and trafficked .

6. This is the case of sanu chaudhari when she was brought to India by a co-worker in a carpet industry. Sanu had a friend who tells her about the better payment facilities in raxaul and they settled to go there. But instead of raxaul sanu was actually trafficked in Mumbai, and she was sexually abused by many people, beaten by brothel guards and finally she took up as her profession.

As the above cases described, there are many cases like this which can actually make a clear picture of the fact that after designing so much measures and the measures remain restricted only in paper, not in reality. The judiciary, administrative and the legislation should scan the problem in a broader view, create and amend some existing laws. Here are some points which I think that should be taken into consideration.

 

ECONOMICAL PROBLEM:

First and fore most child labor arises out of mainly one reason that is poverty. We cannot always blame the laws for not having its effect on common people, there are some embedded problems also. For example in primitive villages where the law surely applies but the monthly income is of really negligible amount , then the child of the family below 14 years of age is sent for work to earn the bread for the family or they migrate to another place for any work. Then the children are seen as the financial provider of the family .This includes no offence in that case in case of morality. It is the responsibility of the government to maintain the economical equality between the peoples in India , the biggest problem to be achieved in the current scenario. A family with a very low income rate do not pay any respect towards the laws that prevails but according to them financial assistance is of more importance. Now if that particular family gets the assistance, then they would have hardly sent their children to earn livelihood. So as long there is poverty and destitution in this country, it is really hard to eradicate the evil. In a case the supreme court opined that the problem of the child labor is a very difficult problem and it is a purely economic problem that parents often want their children to be employed to make both ends meet . So onwards there should be some steps by the judiciary or the legislation regarding assisting financially to lessen child labor.

MASS ILLITERACY:

Generally in places where there is mass illiteracy in the community, various social evils are prevalent in that particular section of the society. In the 20th century also, many community think that a girl child is there only for doing household duties and there is nowhere access to education in their families .For these people the constitutional mandates are of no. importance. These categories of people are generally reluctant to send their children to schools and colleges. They send their children for work without knowing anything about the child labor problem and the corrupt employers mostly want these type of workers by whom they can easily make the work done. But this type of continuous practice cannot help in restraining the problem. The government should bear the responsibility to educate the people about the problems, consequences of child labor, about how it hinders the growth of the society, the exploitation of human resource and most importantly that is a punishable offence under law. It should be imparted that education is not only for restriction of child labor but it is also needed to earn money that is the prime factor they look at.

EDUCATIONAL AMMENDMENTS:

It is there that a child has the right to free elementary education between 6-14 years of their age. According to the reports of the Report On National Commission of Labor, the proposed 83rd amendment bill will guarantee the right to education children in time age 6-14 group. Only those who can afford to nurture their young children and provide them pre-school opportunities, will be able to take advantage of the right. The age group of 3+ must be included to ensure that children of disadvantaged groups have equality of opportunity in the school system

Another aspect is there that there are number of schools and plans of actions prepared , but their proper implementation is also important. According to the National University of Educational Planning and Administration (UNEPA), about 47 lakhs elementary school teachers have not studied beyond higher secondary examination. The government should keep training session for that teacher to ensure quality educational to the students. At the elementary level, the student have to be nurtured very properly, have to be equipped with analytical, conceptual skills because this is the base of education that he is receiving . in many cases it happens that for the sake of law , a school is set up. They don’t have proper infra, system and discipline. The teacher remains absent most of the days. In remote areas there is very low accountability rather no accountability in their systems resulting in very poor performance of the teachers. There should be some amendments or some serious measures to curb these problems.

 

BETTER INCOME OPPORTUNITIES

In India unemployment rate is not too high, that it should be ignored. Many of the cases where the peoples are indulging in some unsocial activities, the main reason behind it is the unemployment. In case of child labor as we have discussed above is mainly because of the economical problem that they face. Sometimes due to many realistic reasons and environment prevailing, parents have to send their children for work because he/she is the prime income holder of the family, at this point of time there should be a number of choices. It is therefore the responsibility of the state to provide income alternatives other than health, education, nutrition to the children, because in many families there is the immediate need of money, they cannot just keep their children in schools being the children, the main earner of the society. At this moment alternative income opportunities are needed. The state shall provide incentive along with education. In this case the students receiving incentive can help his family and on the other hand they can also share education both at a time.

ENFORCING THE RESPONSIBILITY ON THE PARENTS

The free elementary education is a constitutional right where it was stated that the state shall provide free education for the children aged between six and fourteen years of age. But this can only be successful in case the parents send them to school instead of sending them at work places. In many cases it happens that, though free education is imparted, still some children do not take part because of not having the consensus of their parents and they go for work under the compulsion of their parents. In this case there should be enforcement on the part of parents in which, the parents will be obliged to send their children to the school otherwise that will be a punishable offence. It will work best for the step mothers/fathers who generally do not send their children to the school and after this the problem will be solved because in this case the parents are in the binding force to send their children to schools . Article 51-A clause k deals with the topic but after the failure of the general persuasion of the clause, it is admitted to move to some stricter provisions. In a case there was opined that children are not mere chattels, they are not the play things of their parents, absolute right of the parents over the destinies and the life of the children has in modern, changed social conditions

 

PROPER ACCOUNTABILITY AND GOVERNANCE

A plan cannot be implemented without proper implementation. All the child labor laws, policies have been determined but not at all implemented properly. This needs proper governance and accountability of the authority. In many cases when it needs the proper investigation about the facts, then the potential to do that really lacks. Sometimes the police inspectors don’t feel themselves responsible for the job given to them. They don’t take the initiative to save the society. There is no one to fill the loop holes prevailing in the system. So the state has to take certain decisions to curtail the problems. The strictness of the law should be increased otherwise the flaws cannot be highlighted and rectified which will result in the ineffective implementation because of violation of laws. One of the effects of this improper governance is the rise of corruption. Illegal employment has been a mode of huge earning in India. The employers generally grab the most portion of amount generated by the child labor. The money generated by child labor is unaccounted and goes to the pockets of the employers. This black money id used again to bribe resourceful peoples all through. But in response only 9 percent of the total employers were arrested. Inspite of their 3 or 4 years of jail, they only got through the case by paying a mere amount for fine. Until now not even a single errant employer has been jailed for . The child labor generates 1,20.000 crores of black money every year.

May be it’s the most pathetic reason why the children have their exposure towards labor. Children whose parents have died and after that it is the immediate necessity of the children to earn something and unfortunately for that reason the child has to join the work. In this case the state should promote the case of adoption. With the help of adoption the child can have again someone who will guide the boy. In eradication of child labor, promotion of adoption is also very important.

According to the report of national commission of labor. A proper fund policy plan should be prevalent. With this facility, the state can use regarding child developments considerations. The best known example comes from Columbia. The government takes 3percent from private and public companies. The fund is then maintained by Columbia institute of child welfare.

On a gross, it can be observed that India has the dubious distinction of having the greatest number of child labor. They are being used by the employers that results in the proliferating amount of miserable and difficult lives for the children. Today the child labor has been nonexistent in the developed countries . But unfortunately in India it is still prevalent because of the poverty forces. The poor income of most of the families in India is the root cause for the problem. There are many voluntary organizations and NGOs who dedicate their duties to eradicate the evil are getting enough support from the government. Very often the open rallies are being arranged by them to infuse the sense of understanding of the problem to the minds of the common peoples. Other than that as discussed earlier there are many actions from the part of state, constitution to fight this problem , then also something is missing very badly and that is proper synchronization between all the measures. If the proper communication and semblance between all the measures can be ensured then the problem will not be as intense as of now. Another major factor that should be kept in mind after the synchronization , is to lower the level of ignorance and increase the mentality of the society. Former can be achieved by proper information allocation in the society and later can be achieved only with the help of the consciousness of the common people. If the community itself do not changes , then it is impossible to implement any ideas and plans because they are main characters dealing with the problem. Therefore the society plays a very important role in this process. We should take the initiative with mass work force and will without passing away the blame on to the others. If we are successful in doing this , then only we can get the solution of the problem.

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.

Role of Indian judiciary in protection of Rights of the Children

Sandip Bhosale

1 Introductory

The role of the India Judiciary and the scope of judicial interpretation have expanded remarkably in recent times, partly because of the tremendous growth of statutory intervention in the present era. The judiciary plays an important role in the protection of fundamental rights of the citizen and non-citizens alike. The twin safeguards of equality before law and equal protection of laws are acknowledge as two of the most important pillars of human rights of the universe of freedom that is where ever freedom to assert human rights is recognized, whether under an unwritten or a written constitution. India is the largest democracy in the world, a sovereign, socialist, secular democratic and republic with a comprehensive charter of rights written into its constitution. The Indian Constitution lays down base on which its foreign policy should be constructed and its international obligations respected. These base are articulated principally in Article 51, which occurs in Part IV of the Indian Constitution.

The true nature and scope of the function of the court has since long been a matter of debate almost in all the countries regulated by written Constitution. Austinian Jurisprudence gives a very narrow view of the judicial function. Austin defined law as a command of the political sovereign and his sovereignty was indivisible and absolute, only the legislature could make law. The function of the court was merely to declare the pre-existing law or to interpret the statutory law. But on the other hand, the realist movement in the United State the latest branch of sociological Jurisprudence which concentrates on decisions of law courts. Regards and contend that law is what court says. For them, judges are the law makers. The entire common law is the creation of the English courts but is posited on the myth that judge merely found law. Even with such self-negating perception of their own role, the English judges not only made law but also changed it to suit entirely new conditions created by the industrial revolution.In this modern era Judicial Activism emerged as tool for protecting Rights of the Children including protection from sexual exploitation, child trafficking, child abuse etc. some case dealt by the Indian judiciary for the protection of child rights are as follows

2 Child Labour and Right to Education

Education is critical for economic and social development. It is crucial for building human capabilities and for opening opportunities. The importance of education was fully recognised by classical economist and social scientist such as Adam Smith, John Stuart Mill, Schultz, Becker and Amartya sen. Alfered Marshall in the Principles of Economics observed as follows:

“The wisdom of expending public and private funds on education in not to be measured by its direct fruits alone. It will be profitable as a mere investment, to give the masses of the people much greater opportunities, than they can generally avail themselves of. For by this means many, who would have died unknown, are able to get the start needed for bringing out their latent abilities. The most valuable of all capital is invested in human beings.”

The abolition of child labour must be preceded by the introduction of compulsory education since compulsory education and child labour laws are interlinked. Article 24 of the Constitution bars employment of child below the age of 14 years. Article 45 is supplementary to Article 24 for if the child is not to be employed below the age of 14 years he must be kept occupied in some educational institution. The Court in series of cases has unequivocally declared that right to receive education by the child workers is an integral part of right of personal liberty embodied in Article 21 of the Constitution. In M.C. Mehta v. State of Tamil Nadu The Supreme Court directed that children should not be employed in hazardous jobs in factories for manufacture of match boxes and fireworks, and positive steps should be taken for the welfare of such children as well as for improving the quality of their life.

In Goodricke Group Ltd v Center of West Bengal the Court held that it would be for the Centre and State/Union Territories to raise necessary resources to achieve the goal of providing free education. Recently Article 21-A has been inserted in the India Act, 2002 which provides that the state shall provide free and compulsory education to all children of the age of six to furteen years in such manner as the state may, by law, determine. In Unni Krishnan J.P. v State of Andhra Pradesh Justice Mohan observed “in educational institutions which are seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up statesmen and soldiers, patriots and philosophers, who will determine the progress of the land.

3 Child Labour Welfare and the Locus Standi

The liberalization of the concept of locus standi, to make access to the court easy, is an example of the changing attitude of the Indian Courts. It is generally seen that the working children by and large come from the families, which are below the poverty line, and there are no means to ventilate their grievance that their fundamental rights are being breached with impunity. Keeping in view the pitiable conditions of the child workers, the apex court has shown its sensitivity towards the poor people by relaxing the concept of locus standi.

One important case in which Supreme Court entertained a letter, sent by post as public interest litigation was the Peoples Union for Democratic Rights v. Union of India Also known as the Asiad Workers case. The Supreme Court held that though the Employment of Children Act, 1938 did not include the construction work on projects because the construction industry was not a process specified in the Schedule to the Act, yet, such construction was a hazardous occupation and under Art.24 children under 14 could not be employed in a hazardous occupation. The right of a child against exploitation under Art.24 was enforceable even in the absence of implementing legislation, and in a public interest proceeding

They have no faith in the existing social and economic system”. A high water mark in the application of the Article 24 of the Constitution was reached in the decision of the Court in Salal Hydro Project v. Jammu and Kashmir wherein the Court reiterated the above stand. The Court maintained that child labour is an economic problem. Poor parents seek to argument their meager income through employment of their children. So, a total prohibition of child labour in any form may not be socially feasible in the prevailing socio-economic environment. Article 24 therefore, puts only a practical restriction on child labour. The Court further observed that so long as there is poverty and destitution in this country, it will be difficult to eradicate child labour.

4 Juvenile Justice

The Juvenile Justice (Care and Protection) Act, 2000 is enacted as human rights legislation and it is now in force in all State uniformly, repealing the entire Children’s Act enacted by states individually. This legislation deals with the two types of juveniles. “Juvenile in conflict with law” as defined under Section 2(1) and child in need of care and protection as defined under Section 2 (d). A juvenile or a child as defined under Section 2 (k) is a person who has not attained the age of 18 years. The penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

In Sheela Barse v. Union of India Ms.Sheela Barse, a dedicated social worker took up the case of helpless children below age of 16 illegally detained in jails. She petitioned for the release of such young children from jails, production of information as to the existence of juvenile courts, homes and schools and for a direction that the District judges should visit jails or sub-jails within their jurisdiction to ensure children are properly looked after when in custody. The Court observed that children in jail are entitled to special treatment. Children are national assets and they should be treated with special care. The Court urged the setting up of remand and juvenile homes for children in jails. In Sheela Barse v Secretary Children Aid Society the Supreme Court came forward to protect the rights of the children in the observation homes.

5 Adoption of Children

Adoption concerns two of our basic human concerns identity and family. A child’s rights to an identity and family are now universally recognized. They are enshrined in the United Nation Convention on the Rights of the Child, 1989.

The Activist Supreme Court of India in Lakshmikant Pandey v Union of India. This writ petition has been initiated on the basis of a letter addressed by one Laxmi Kant Pandey, an advocate practising in this Court, complaining of mal-practices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The letter referred to a press report based on “empirical investigation carried out by the staff of a reputed foreign magazine” called “The Mail” and alleged that not only Indian children of tender age are under the guise of adoption “exposed to the long horrendous journey to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the Shelter and Relief Homes, they in course of time become beggars or prostitutes for want of proper care from their alleged foreign foster parents.” The petitioner accordingly sought relief restraining Indian based private agencies “from carrying out further activity of routing children for adoption abroad” and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents. This letter was treated as a writ petition and by an Order dated 1st September, 1982 the Court issued notice to the Union of India the Indian Council of Child Welfare and the Indian Council of Social Welfare to appear in answer to the writ petition and assist the Court in laying down principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents and if so, the procedure to be followed for that purpose, with the object of ensuring the welfare of the child. In this case the Supreme Court held that any adoption in violation of or non-compliance with may lead adoption to be declared invalid and expose person concerned with to strict action including prosecution. For years, social activists have used these directions to protect children and promote desirable adoptions. The Government of India framed a national policy in this regard.

6 Sexual Exploitation of Children

Human Rights are derived from the dignity and worth inherent in the human person. Human right and fundamental freedom have been retreated by the Universal Declaration of Human Rights. The human rights for women, including girl child age, therefore, inalienable, integral and indivisible part of universal human rights. All forms of discrimination on ground of gender are violative of fundamental freedoms and human rights. It would, therefore, be imperative to take all steps to prohibit prostitution. Eradication of prostitution in any form is integral to social weal and glory of womanhoods. Right of the child to development hinges upon elimination of prostitution. Success lies upon effective measures to eradicate root and branch of prostitution. In Bachpan Bachao Andolan v Union of India writ petition filed by HRLN, Suprem Court on 18.04.2011 has ordered for implementation of suggestions put forth during the hearing of this case, which will introduce significant reforms in existing child protection regime. The petition was originally brought in 2006 on issue of abuse and exploitation of children in circus industry. Court has ordered Central Government to bring a notification prohibiting employment of children in circus, to conduct raids to rescue children already working in circuses and frame proper scheme for their restoration. During the hearing in this case, several recommendations were put forth by petitioner and respondent, aimed on reforming existing legal and procedural mechanism on child protection. This recent order is just one among the several orders which may be given by Hon’ble Supreme Court in due couese of time as Hon’ble Court has made clear its intention to deal with issue of childrens exploitation in a long term and systematic manner. Assuring to deal with childrens exploitation firmly, Supreme Court has observed: “We plan to deal with the problem of childrens exploitation systematically”.

In Vishal Jeet v. Union of India Supreme Court in this case deals with some seminal questions relating to the sexual exploitation of children. Here it has been observed that it is highly deplorable and heart rending to note that many poverty stricken children and girls in the prime age of youth are taken to the ‘flesh market’ and forcibly pushed into “flesh trade” which is being carried on in utter violation of all cannons of morality, decency and dignity of mankind. In Gaurav Jain v. Union of India, The Supreme Court held that the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them. The Court directed for the constitution of a committee to formulate a scheme for the rehabilitation of such children and child prostitutes and for its implementation and submission of periodical report of its Registry. 7. Sakshi v Union of India In this Public Interest Litigation matter, the Supreme Court of India asked the Law Commission to consider certain important issues regarding sexual abuse of children submitted by the petitioner and the feasibility of amendment to 375 and 376 IPC.

7 Rehabilitation of Child Prostitutes

The rescue and rehabilitation of the child prostitutes and children should be kept under the Nodal Department, namely; Department of Women and Child Development under the Ministry of Welfare and Human Resource, Government of India. It would devise suitable schemes for proper and effective implementation. The institutional care, thus, would function as an effective rehabilitation scheme in respect of the fallen women or the children of fallen women even if they have crossed the age prescribed under the Juvenile Justice (Care and Protection) Act. They should not be left to themselves, but should be rehabilitated through self-employment scheme or such measures as are indicated by the Supreme Court in this case. The juvenile homes should be used only of a short stay or relieve the child prostitutes and neglected juveniles from the trauma they would have suffered. They need to be rehabilitated in the appropriate manner. The details are required

To be worked out by meaningful procedure and programmes. In the light of the directions already given by this court from time to time to the central government state governments and Union Territory Administrators, adequate steps should be taken to rescue the prostitutes, child prostitutes and the neglected juveniles. They should take measures to provide them adequate safety, protection and rehabilitation in the juvenile homes manned by qualified trained social workers or homes run by NGOs with the aid and financial assistance given by Government of India or state government concerned. A nodal committee with the public spirited NGOs, in particular women organizations women members should be involved in the management. Adequate encouragement may be given to them. The needed funds should be provided and timely payments disbursed so that the scheme would be implemented effectively and fruitfully.

8 Conclusion

The brief survey of the above mentioned cases shows that the activism of the Indian Supreme Court to protect the children from various type of exploitation. Although the Supreme Court made laudable directions and suggestions in many instances to protect basic rights of poor children, unfortunately these directions and suggestions are not followed and implemented by the government machinery effectively. In this regards, the performance of the Indian Judiciary stands out as a signal contribution to the implementation of human rights generally and that of Child Rights in particular.

As such in the M.C. Mehta v. State of Tamil Nadu and Goodricke Group Ltd v Center of West Bengal Supreme Court of India emphasized on national Constitution and international instruments, including the Convention on the Rights of the Child, the Indian government is required to ensure that children do not engage in hazardous work. In Lakshmi Kant Pandey v Union of India with object of ensuring the welfare of the child J. Bhagwati directed the Government and various agencies to follow some principles as their constitutional obligation to ensure the welfare of the child. Also judiciary has taken the lead to save the child from exploitation and improve their conditions. To mention a few, the Asiad case (1981), L.K.Pandey case (1994), M.C.Mehtas case (1991), Vishal Jeet v. Union of India (1990), and Gaurav Jain v. Union of India (1997) are some of the famous decisions where the judiciary has shown enough courage to uphold the interests of the children and spared no one to improve the working conditions of the child workers. The judiciary has always made concrete efforts to safeguard them against the exploitative tendencies of their employer by regularizing their working hours, fixing their wages, laying down rules about their health and medical facilities. The judiciary has even directed the states that it is their duty to create an environment where the child workers can have opportunities to grow and develop in a healthy manner with full dignity in consensus of the mandate of our constitution.

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