Table of Contents 1. The facts mentioned in the case of M C Mehta Vs. State of Tamil Nadu3 2. Court’s Decision5 3 . International Perspectives on Child labour6 3. 1 Child labour Practices around the World7 3. 2 Some of the Good Practices on Child labour across the World8 4. Evolution of the constitutional and legal provisions relating to child labour in India11 5. Suggestions (legal as well as non-legal) for tackling the child labour problem14 Legal suggestions14 Non-Legal suggestions14 6. References15 1. The facts mentioned in the case of M C Mehta Vs. State of Tamil Nadu Petitioner: – M. C. MEHTA Vs.
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Respondent: – State of TAMIL NADU and OTHERS Date of Judgement: 10/12/1996 Bench consisted of Judges:- Kuldip Singh, B. L. Hansaria, S. B. Majumdar In Sivakasi cracker factories, as on 31-12-1985: • Number of registered match factories=221 • Total workmen= 27, 338 • Number of children employed=2941 Occurrence of a major accident in Sivakasi and happenings thereafter (facts in the case) In an “unfortunate accident”, in one of the Sivakasi cracker factories:- The number of persons who died was stated as 39 by the Tamil Nadu Government. In our country, Sivakasi has been the worst offender in the matter of iolating “prohibition of employing child labour”. In lieu of this, the public-spirited lawyer, Shri M. C. Mehta invoked the Court’s power under Article 32, because it was the violation of the fundamental right of the children guaranteed by Article 24. An advocates’ committee was formed to visit the area and make a comprehensive report relating to the various aspects of the matter. The Committee members were: • Shri R. K. Jain, a Senior Advocate • Ms Indira Jaising, another Senior Advocate • Shri K. C. Dua, advocate. The court rejected the following affidavits in regard to this case and decided to uphold the recommendations of the committee:- An affidavit of the President of the All India Chamber of Match Industries, Sivakasi, on record which contains its reaction to the recommendations of the Committee • An affidavit filed by the President of Tamil Nadu Fireworks and Amorces Manufactures’ Association The court mentioned the following facts of violations of prohibition of child labour at Sivakasi:- • First of these reports is of a Committee which had been constituted by the Labour Department by the Tamil Nadu Government vide its GOMs dated 19-3-1984, under the Chairmanship of Thiru N. Haribhaskar.
The report of the Committee is voluminous, as it runs into 181 pages and contains a number of annexure. The Committee reviewed the working conditions and measures taken to mitigate the sufferings of the child labour and has made various recommendations This work is of October 1985 • Second report deals with the causes and circumstances of the fire explosions which had taken place on 12-7-1991 at Dawn Amorces Fireworks Industries and it contains remedial measures • Third and the final report relating to Sivakasi workers which relates to elimination of child labour in the match and fireworks industries in Tamil Nadu is of 30-3-1993.
The representatives of the Department of Labour and Employment, Social Welfare and Education had prepared this report in collaboration with UNICEF and it speaks of “A proposed strategy framework” A 16-member Committee had come to be set up by a resolution of the Labour Ministry dated 6-2-1979 and 7-2-1979 under the Chairmanship of Shri M. S. Gurupadaswamy. The report’s (dated 24-6-1981) conclusion regarding child labour which was considered in the case: “Extreme poverty, lack of opportunity for gainful employment and intermittency of income and low standards of living are the main reasons for the wide prevalence of child labour.
Though it is possible to identify child labour in the organised sector, which forms a minuscule of the total child labour, the problem relates mainly to the unorganised sector where utmost attention needs to be paid. The problem is universal but in our case it is more crucial. ” The growing problem of child labour in India as shown by the national census:- According to the 1971 census, the number of working children =10. 7 million According to 1981 census, the figure = 11. 16 million working children The estimate of the National Sample Survey Organisation= 17. 8 million working children in 1985 None of the official estimates included child workers in the unorganised sector, and therefore, are obviously gross underestimates. Estimates from various non-governmental sources as to the actual number of working children ranged from 44 million to 100 million. The aforesaid profile shows child labour as an all-India evil 18 conventions and 16 recommendations had been adopted by the International Labour Organisation up-till this case on the problem of child labour and exploitation which is a prevalent problem worldwide and these were also stated. . Court’s Decision • The manufacturing process of matches was deemed as hazardous, giving rise to accidents including fatal cases. So the court gave certain directions as to improve the quality of life of children employed in such factories. The provisions mentioned in Article 39(e) and Article 45 was taken as base platform for these directions. • The Court also formed a committee to ensure the compliance • The court ordered the offending employer to pay compensation of Rs. 20,000 for each child in their employ.
This sum would be deposited in a Child Labour Rehabilitation-cum-Welfare Fund, interest from which was to be used only for the concerned child. • Further, given the constitutional directive that the state has to help realize the “right to work,” the court considered whether the state may have an obligation to ensure that when a child is with-drawn from work, an adult in the child’s family is provided employment. • Where it is not possible to pro-vide alternative employment to an adult, the court ordered that a “contribution/grant” of Rs. 5000 for each child employed in a factory or mine or in any other hazardous employment” be eposited in the Rehabilitation Fund by the government. The child should then be withdrawn from employment and assisted by the Rs. 25,000 fund or the Rs. 20,000 and alternative employment. Assistance was to be halted if the child was not sent to school. • As for non-hazardous jobs, the court charged the inspector under the 1986 act with ensuring that children did not work longer than four to six hours a day and that they received “education at least for two hours each day. ” The “entire cost of education is (to be) borne by the employer. ” 3.
International Perspectives on Child labour Child labour is a worldwide problem that has caused detrimental effects to children’s health and well being. Child labour persists in alarming proportions in third world countries inspite of the adoption of elaborate legislative measures to combat it. This section will throw some light on the role of International labour Organization in preventing child labour, good practices followed in different countries to prevent child labour along with the various practices followed in different countries to prevent child labour.
International Labour Organization & IPEC The International Programme on the Elimination of Child Labour was created in 1992 to enhance the ILO’s response to its long-standing goal of the effective elimination of child labour. Since then, IPEC has grown to become the biggest dedicated child labour programme in the world and the largest technical cooperation programme within the ILO with over $60 million expenditure in 2008. According to International labour Organization, there are still 215 million children involved in child labour, which violates international standards.
Many children are victims of the worst forms of child labour, such as bonded labour, slavery or practices similar to slavery, production and trafficking of drugs or other work which is likely to harm their health, safety or morals. The effective abolition of child labour is one of the most urgent challenges of our time. Though Child labour has continued to decline but rate of decline of just 3 percent from 2004-2008 is not upto the mark. Among 5-14 year olds, the number of children in child Labour has declined by 10 percent and the number of children in hazardous work by 31 percent, but there are still 115 million children in hazardous work.
Also there has been a 15 percent decrease in the number of girls in child labour and a 24 percent decline in the number of girls in hazardous work. The major point of worry is increase in child labour from 52 million to 62 million in the 15-17 years age group. Some of the conventions enacted by ILO to tackle the problem of child labour are as follows:- 1) Minimum Age for Admission to Employment and Work (No. 138) – The goal of this convention is to define the minimum age for children to enter employment and prevent children from child labour. ) The Minimum Age (Underground Work) Convention, 1965 (No. 123) 3) Worst Forms of Child labour (No. 182) – This convention aims to abolish the worst forms of child labour in the world. By April 2005, 153 of the ILO’s 178 members had ratified this and pledged to take specific measures to curb worst forms of child labour for children under 18 years of age. Some of the worst forms of child labour defined in this convention are as follows:- • Using children for slavery and other similar activities • Using children for prostitution and other pornographic activities Using children for producing and trafficking drugs • Using children for any work which harm their health and morals 3. 1 Child labour Practices around the World 1) United States of America: – Around 1 million children work as child labourers in United States irrespective of the fact that it is the biggest economy in the world. The Fair and labour Standards Act helps in providing education opportunities to children and prevent from exploitations. The Fair Labor Standards Act (FLSA) establishes child labor standards in U. S.
The Fair Labor Standards Act (FLSA) regulates the following in United States. • Minimum age for hazardous work • Minimum age for non-hazardous work • Hours of Employment • Minimum Wages, Equal Pay, Overtime Pay • Federal and State labour laws. 2) South Africa: – The Child Labour Programme of Action (or CLPA) adopted in 2003 is the national plan under the Department of Labour on elimination of child labour in South Africa. Following are the key elements CLPA :- • Strengthening of nations capacity to enforce child labour laws • Increasing public awareness against child labour Promotion of new legislative measure 3) France: – The minimum age set for working under the French law is 16 years except for those engaged in certain apprentice programs or working in the entertainment industry. To keep a check there are routine visits by Labour Inspectors from the Ministry of Labour. France being one of the most prosperous nations of Europe practices unambiguous legal provisions and a stringent law enforcement mechanism within a solid legal framework that forbids forced labour of any kind 3. 2 Some of the Good Practices on Child labour across the World ) Zambia: – Realizing that no community programme can succeed without the use of community members, Livingstone Anglican Children’s Project (LACP) and private sector joined hands to address child labour. Steps taken by them were as follows: – • Creating and encouraging the development of the community child labour committees • Conducting training to support their roles • For sustainability of the programme the beneficiaries agreed on the idea of depositing money in the bank on a regular basis. Through these structures the message of the importance of children’s education was being spread in the communities.
The communities actively participate in the programme activities; they were involved in the identification of beneficiaries, conducted community awareness programmes, and participate in the ongoing programme-update meetings. The banks offered savings accounts with no ledger fees and, for all accounts opened through LACP, to pay for the photos needed to open one. The savings scheme with a local bank was an innovative measure for supporting family and community livelihoods. The opportunity explored with the private sector (i. e. the bank) to indirectly support children’s education and welfare is praiseworthy.
This is an important intervention for both prevention and withdrawal of children from child labour and is a good example of working with local institutions to support child labour programmes. This saving scheme made the project sustainable and will go a long way in supporting children education. Source – Report on “good practices on child labour 2010 by IPEC in Africa region” http://www. ilo. org/ipecinfo/product/viewProduct. do? productId=13359 2) West Africa: – They went a distance to stop child trafficking by setting up of local vigilance committee composing of community volunteers.
Their role were as follows: – • mobilizing the community to take action against trafficking • Monitoring the well-being of children and migrant behavior • Identify and intercept children at risk of becoming victims of trafficking and coordinate the offering of direct assistance services to children in need Strategies used by LVCs include: – • Community based child monitoring such as Family accompaniment • Institutional presence such as Badges, bicycles, T-shirts, and other identifying mechanisms to alert traffickers about the presence of LVCs and build confidence among village residents. Public information events such as awareness-raising sessions where videos were shown As a result of the creation and presence of the LVCs, innovative, result-oriented steps have been taken towards creating sustainable anti-trafficking programmes in at-risk communities. Today, 26 LVCs with 222 members are strategically located in communities around Kolondieba and Koutiala. Since 2005, they have repatriated 430 children and more than 3,500 children have been re-enrolled in public school or vocational centres after being taken away from their homes for exploitative work.
Source – Report on “good practices on child labour 2010 by IPEC in Africa region” http://www. ilo. org/ipecinfo/product/viewProduct. do? productId=13359 3) Brazil: – As a measure to fight against child labour, one of the step taken by Brazil was to involve its health sector to fight against the child labour, It formed a joint strategy with the Brazilian Ministry of Health and the Adolescent Worker’s Health Program of the State University of Rio de Janeiro’s Center for the Study of Adolescent Health and the IPEC.
This project aims in training health care professionals to identify various health related issues related to the work. The basic issue which was identified with this program was that there exists a lot of knowledge gap in the health care professionals. Based on results, one of the necessary conditions identified for these programs to be successful was the involvement needed of the public authority in the health Sector. Source – Article by ILO on “Engaging the public health sector in the fight against child labour” http://www. stopchildlabor. rg/USchildlabor/fact1. htm 4) Tanzania: – As a fight against Child labour, Child Labour Monitoring System (CLMS) was introduced for the purpose of identifying and providing victims of child labour with educational services in the year 2004. As a part of this project, it created a structure for monitoring child labour by forming the first Village Child Labour Committee (VCLC), District Child Labour Sub-committee (DCLSC), District Child Labour Coordinator, National Child Labour Coordinator (NCLC) and the National Inter-sectoral Coordination Committee (NISCC).
The major achievement of this programme was that government and stakeholders (employers’ and workers’ organizations and civil society) have developed and adopted a National Action Plan (NAP) and a child labour monitoring system (CLMS) for the elimination of worst forms of child labour. Source – Report on “good practices on child labour 2010 by IPEC in Africa region” http://www. ilo. org/ipecinfo/product/viewProduct. do? productId=13359 5) China: – The comparative size of the population, the lower levels of income have led to the problem of forced labour being one of growing importance and perplexity to the countries of Asia.
China has initiated a project “Prevent Trafficking in Girls and Young Women for Labour Exploitation within China” which is a partnership between the International Labour Organization and the All-China Women’s Federation, and involves close collaboration with government and non-government organizations. Around 150 million people migrate in china from the rural areas to the urban areas in search of employment most of whom are uneducated children. There is high number of cases in human trafficking amongst these children in China.
So the major objective of this programme is to provide basic education to the children especially girls under the age of 16 and prevents them from trafficking. Since railway route act as an informal channel for carrying out trafficking operation, hence this programme also aims in having a close collaboration with the railways department which helps to prevent trafficking wherever possible and helps in safely transferring children to their destination. Also hiring migrant girls and mobilizing them as volunteers to distribute materials among peers was a good way of addressing this obstacle.
Source – Article by ILO on “The Spring Rain Campaign: Promoting safe migration using the Railway Network” http://www. stopchildlabor. org/USchildlabor/fact1. htm 6) India (Tamil Nadu): – A good step against elimination of child labour was taken in Tamil Nadu by launching a pilot project on “Promoting Decent Work in Brick Kilns” in Kanchipuram District in July 2008. The project aims to reduce brick workers’ vulnerability to bonded labour. A study commissioned by ILO founded that more than 80% of the children who migrated with their parents to brick kilns did not go to school.
By the support of ILO, the employer association (CABMA) took up the challenge to combat child labour by carrying out number of welfare activities. In a survey designed in consultation with the Sarva Shiksha Abhiyan (SSA) it was found that 600 out of- school children, aged 6-14, were identified in the 50 brick kilns. The ILO project team then enrolled 174 children in the regular schools, and SSA came forward to open 20 centres in the brick kiln areas to educate the rest of the children. A team comprising of SSA educators, Village Education Committee (VEC) members & local government school teachers was formed.
The achievement for them was that through 20 SSA centres, 424 children were educated for three months, after which they became eligible for getting enrolled in regular schools. Inspired by the success of the pilot experience, SSA is considering replicating the approach in brick kilns throughout Tamil Nadu, which are approximately 3,000 in number. Source – Report on “good practices on child labour 2010 by IPEC in Asia region” http://www. ilo. org/ipecinfo/product/viewProduct. do? productId=13359 4. Evolution of the constitutional and legal provisions relating to child labour in India Year |Relevant Act |Action Taken | |1881 |Factories Act |Set minimum age of employment at 7 years and maximum hrs of work per day as 9 hrs | | | |Amendment-Minimum age of employment set to 9 years | |1891 |Factories Act |Prohibition of employment of hildren under 12 years under any mine | | | |Amendment- Minimum age of employment raise to 15 years and restricted working hours to 6| | | |hrs | | | |Set 12 years as minimum age for handling goods at ports | | | |Restricted child below 16 years to be employed, or allowed to migrate, unless | | | |accompanied by parents | | | |The Children (pledging of Labour) Act, passed into law in 1933, is the first | | | |acknowledgment of the problem of child bondage | | | |Prohibited children below 12 years from being employed in factories and restricted work | | | |to 5 hours a day for children between 12 and 15 | | | |Raised the minimum age to fifteen years | | | |The first enactment squarely addressing the issue of child Labour- set the minimum age | | | |of employment in certain industries at 15 and in the transportation of goods on docks | | | |and wharves at 14 | | | |Prohibited a child under 14 from working in a factory | | | |Guaranteed as fundamental right in part 3 of the constitution – 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 | | | |Prohibited the employment of children below 12 | | | |Categorically rejected the employment of persons below the age of eighteen years | | | |Prohibits employment of children under 14 | | | |Prohibits employment of children below 15 “in any capacity in any motor transport | | | |undertaking. | | | |Disqualifies a person less than 14 years from being engaged as an apprentice | | | |Prohibits the employment of children under 14 in any industrial premises | | | |Prohibits employment of children in a scheduled list of occupations and scheduled list | | | |of processes | | | |In a landmark decision, declared free education to age 14 to be a Fundamental Right.
In | | | |2002, constitution was amended to reflect Supreme Court’s decision | | | |Restore the minimum age of 15 in merchant shipping and motor transport and to restore | | | |the prohibition of child labour on plantations | | | |“Domestic workers or servants” were added to the list of prohibited occupations in CLPRA| | | |Protection of Child Rights Act came into effect | |1901 |Mines Act | | | | | | |1922 |Factories Act | | | | | |1931 |Indian Ports Act | | |1932 |Tea Districts Emigrant Labour Act | | |1933 |Children (pledging of Labour) Act | | |1934 |Factories Act | | | | | | | | | | |1935 |Mines Act | | |1938 |Employment of Children Act | | | | | | | | | | | |Factories Act | | |1948 |Constitutional Act | | |1950 | | | | | | | | | | | | |Plantations Labour Act | | |1951 |Mines Act | | |1952 | | | | |Merchant Shipping Act | | |1958 |Motor Transport Workers Act | |1961 |Apprentices Act | | | | | | |1961 |Beedi and Cigar Workers Act | | | |Child Labour (Prohibition and | | |1966 |Regulation Act) | | | |Supreme Court of India | | |1986 | | | | | | | |1993 |Child Labour (Prohibition and | | | |Regulation Act) | | | | | | |2001 |Child Labour (Prohibition and | | | |Regulation Act) | | | |Protection of Child Rights Act | | |2006 | | | | | | | |2006 | | | Indian government has been continuously taking several pro-active measures to tackle the child labour problem. In 1979, the first committee (Gurupadswamy Committee) was formed, to study the issue of child labour and suggest measures to tackle it. After keenly examining the problem, the committee felt that eliminating child labour and abolishing it through legal recourse would not be a practical solution. Hence, it recommended a multiple policy approach to deal with this problem.
Based on the recommendations of Gurupadaswamy Committee, the Child Labour (Prohibition & Regulation) Act was enacted in 1986, which prohibits employment of children in certain specified hazardous occupations and processes and regulates the working conditions in others. Accordingly, a National Policy on Child Labour was formulated in 1987, which focused on rehabilitation of children working in hazardous occupations and processes. The Action Plan outlined in the Policy for tackling this problem is as follows: • Legislative Action Plan focused on strict enforcement of Child Labour Act and other labour laws to ensure that children are not employed in hazardous employments, and that the working conditions of children working in non-hazardous areas are regulated in accordance with the provisions of the Child Labour Act. General Developmental Programmes for Benefiting Child Labour – emphasizes the need to cover the children and their families under various poverty alleviation and employment generation schemes of the Government. • 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. 00 per month, supplementary nutrition and regular health check-ups so as to prepare them to join regular mainstream schools. 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. Government has been taking proactive steps to tackle this problem through strict enforcement of legislative provisions along with simultaneous rehabilitative measures. Regular inspections and raids are conducted by the State Governments to detect cases of violations. Government has also been laying a lot of emphasis on the rehabilitation of these children and on improving the economic conditions of their families.
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. 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 Government is focused on eliminating child labour in all its forms in a targeted manner. The multipronged strategy followed by the Government has found its echo during the recent discussions held in the Parliament on the Private Member’s Bill tabled by Shri Iqbal Ahmed Saradgi. It was unanimously recognized that the problem of child labour is inextricably linked with poverty and illiteracy, and hence cannot be solved by legislation alone. Only a holistic, multipronged and concerted effort will yield the desired results.
In 1997, Human rights commission has repeatedly urged the government to revise the rules which prohibits the government employees from employing the children for domestic help. In 2006, “domestic workers and servants” were added to the list of prohibited occupations in the CLPRA. Supreme Court has made the right to primary education part of the right to freedom. The states have been directed to provide free and compulsory education to children from six to fourteen years of age. On 4th August 2009 the Right to Education bill was cleared by the Indian Parliament, and the act came into force on 1st April 2010. Source: Govt. of India, Ministry of Labour (http://www. labour. nic. in) 5.
Suggestions (legal as well as non-legal) for tackling the child labour problem As noted in the judgment the causes of failure of child labour being abolished are: (1) poverty; (2) low wages of the adult; (3) unemployment; (4) absence of schemes for family allowance; (5) migration to urban areas; (6) large families; (7) children being cheaply available; (8) non-existence of provisions for compulsory education; (9) illiteracy and ignorance of parents; and (10) traditional attitudes. Based on the judgment and resources from internet the following can be done to abolish child labor in India. Legal suggestions It is imperative to ensure that the offenders are caught and strict actions should be taken on them.
The current punishment of Rs. 20,000 may be little or less harsh on the person violating such a law. Companies involving in such practices should be banned after one warning. Now as education until age of 14 has become a fundamental right even the parents are liable to punishment if they do not send their child to schools till age of 14. With strong law enforcements towards compulsory education by each state the child could enjoy his/her fundamental right rather than working at a time when he/she should be grooming his future. Hence by linking of Sarva Shiksha Abhiyan and removal of child labour two main issues can be solved together. Non-Legal suggestions State Government and Central government are currently working towards removing child labour via various action based plans like “National Child Labour Project” (NCLP) and INDUS (a project in collaboration with US government). In the 10th action plan NCLP is to be implemented in 150 districts. • Each department’s (like rural development, HRD etc. ) efforts are highly fragmented; it might be more effective if we can combine all of these efforts together. • Various NGOs like Cry, Care etc. should continue on their efforts to eliminate child labour and focus on the education of these children. • The funds from global bodies like UNICEF (to ensure education to children) should be used effectively. 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. • Various corporates and other big companies in India can come forward and help in the noble cause of eliminating child labour. • Industries working hazardous materials should consider using machines rather than humans for processes wherein there would be a direct contact with these hazardous materials. • Instruments to alleviate poverty is also important to stop child labour. 6. References 1. http://www. ilo. org/wcmsp5/groups/public/—dgreports/—dcomm/documents/publication/wcms_126685. pdf 2. http://www. ilo. org 3. http://www. iisg. nl/research/childlabour. php