v^

CHAPTER - V

Constitutional Safeguards and Judicial Response Against the

Exploitations of the Child Labour

5.1 Introduction

Even prior to the Constitution, labour legislation in India provided means for the

safety and health of children, by examining the modus operandi of employees

and exploitation and abuse of children. The origin of statutory protection of

child labour in India can be traced back to the Indian Factories Act, 1881. This

was followed by varioti.s amendments to the factories law and also by

incorporation of regulatory provisions on child labour laws relating to

plantations, mines and motor transport etc. These laws mainly regulated

working hours, rest intervals, minimum age and nature of work of child labour.

The employment of children Act, 1938 was enacted to prohibit employment of

children below 15 years in certain specified hazardous occupations. Now, this

Act has been repealed. The children (pledging of labour) Act, 1933 was enacted

to prohibit the pledging of labour of children below 15 years by parents.

However, the Indian state did not have for its guidancy any concrete goals to

pursue in the area of rights of children and their employment.

When we framed our Constitution, we were aware of prevailing rampant

exploitation of child in almost all walks of life. The Constitution of India

attempted to curve out by proclaiming certain values choices in this sphere. The
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Constitution makers of India incorporated important provisions relating to

children in Chapter III on Fundamental Rights and in Chapter IV on Directive

Principles of State Polic\' oi the Constitution for the betterment and protection of

children.

5.2 The Preamble

The Preamble to our Constitution declares "We, The People of India,

having solemnly resolved to constitute India into a Sovereign, Socialist, Secular,

Democratic Republic and to secure to all its citizens: Justice, social, economic and

political; Liberty of thought, expression, belief, faith and worship; Equality of

Status and opporliinitv ninl U> promote among them ..ill.

Fraternity assuring the dignity ot the individual and the unity and integrity of

the nation;

In our Constituent Assembly this 26* day of November, 1949, do hereby Adopt,

Enact and Give to Ourselves This Constitution" .^

The people of India resolved on November 26, 1949 to constitute their

country into a sovereign democratic republic and to secure to all its citizens,

inter-alia justice, social, economic and political. The main object of our

Constitution is to secure justice, liberty, equality and fraternity for all its citizens

including children. Thc> Preamble promises to secure justice "social, economic

and political" for the citizens including children. The preamble embodies the

goal which the state has to achieve in order to establish social justice and to
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make the masses free in the positive sense. The objectives flowing from the

Preamble cannot bo achieved and shall remain on paper unless the justice should

be provided to the children suffering from child labour. Regarding this citizens

are also required to be educated about the ill effects of child labour and

providing them social justice. The three justice promised by the preamble is

only an illusion to the people who are illiterate. It is only the education, which

equips a citizen to participate in achieving the objectives enshrined in the

Preamble.2

5.3 Fundamental Rights

The Constitution makers of Indian incorporated the Fundamental Rights

in Part-Ill of the Indian Constitution. Some articles on Fundamental rights are

also inserted for the betterment and protection of children. The Constitution of

India not only provides safeguards but also protection to child labour from

exploitation.

5.3.1 Article 15

Article 15 of the Constitution of India deals with right to equality without

any discrimination on grounds of religion, race, caste, sex or place of birth.

Article 15(1) of the Constitution directs the state not to discriminate against a

citizen on grounds only oF religion, race, caste, sex or place of birth or any of

them. Article 15(2) prohibits citizens as well as the states from making such

discrimination with regard to access to shops, hotels etc. and all places of public
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entertainment, of public resort, wells, tanks and roads etc. The clause (1) of

Article 15 prohibits discrimination by the state and clause (2) prohibits both the

state and private individuals Irom making any discrimination. The clause (3) of

Article 15 empowers the state to make special provisions for the protection of

women and children. The clause (3) of Article 15 in an exception to the general

rule laid down in clauses (1) and (2) of Article 15.

Article 15(3) says that nothing in Article 15 shall prevent the state from

making any special provision for women and children. According to the makers

of our Constitution, the interests of women and children, deserved protection.

Children require special treatment on account of their very nature. Article 15(3)

empowers the stale to makt> special provisions for them. It means that State can

discriminate in favour of women and children against men but could not

discriminate in favour of men against women and children.^ Such special

provision may be made either by legislation or by executive order. It is thus

clear that the Parliament, State Legislature and Executive are enabled to make

special provision or to take special measures for children, even if such measures

would discriminate between the child and adult.

In Anjali Roy vs State of W.B.^ it has been held that Article 15(3) provides

for only special provisions for the benefits of women and children and does not

require that absolutely identical treatment as those enjoyed by males in similar

matters must be afforded to them.

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Article 15(3) is exception to Article 15. The state of empowered to make

provisions for free education for children, or to take all necessary and reasonable

steps for prevention of their exploitation. In doing so under Article 15(3), the

state shall not be deemed to be contravening the provisions of Article 15. In Mt.

Choki vs. Stated the court held that under Article 15(3) special provisions could

be made in favour of women and children but not against them. The position of

women and children requires special protection. Article 15(3) must be treated as

applying to both existing and future laws. And the reference to children must be

treated as an independent substantive provision putting a discrimination in

favour of children beyond children on the ground of discrimination.^ The words

"Special provisions for women and children" in Article 15(3) meant "Special

provisions in favour of women and children".

5.3.2 Article 21

Article 21 of the Constitution says that: "No person shall be deprived of

his life or personal liberty except according to procedure established by law".''

"Right of life" is the concise expression for all those rights, which the courts

must er\force because they are basic to the dignified enjoyment of life. It extends

to the full range of conduct which the individual is free to pursue. The right to

education flows directly from right to life. The Supreme Court has held in

Mohini Jain vs State of Karnatka*^ that the right to education is a fundamental

right under Article 21 of the Constitution. The right to life under Article 21 and
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the dignity of an individual cannot be assured unless it is accompanied by the

right to education. Thus, the state is under an obligation to make endeavour to

provide educational facilities at all levels to its citizens. The right to education is

concomitant to the Fundamental Rights enshrined under Part III of the

Constitution. The fundamental right to speech and expression cannot be fully

enjoyed unless a citizen is educated and conscious of his individual dignity.

In Uni Krishan vs State of A.P.^, the Supreme Court held that right to

education is a fundamental right under Article 21 of the Constitution as 'it

directly flows' from right to life. The Supreme Court also held that the right to

free education is available only to children until they complete the age of 14

years, but after that the obligation of the state to provide education is subject to

the limits of its economic capacity and development. This judgement paved way

to the Constitutional amendment in 2002. Now Article 21(A) was added to

Article 21 which is fundaniental of fundamental right i.e. right to life and liberty.

This judgement has a direct bearing on the elimination of child labour.

In Francis Coralie vs Union Territory of Delhi^o the Supreme Court while

elaborating the right guaranteed under Article 21 of the Constitution held, "the

question which arises is whether the right to life is limited only to protection of

limb or faculty or does it go further and embrace something more." We think

that the right to life includes the right to live with human dignity and all that

goes along with it, namely the bare necessaries of life such as adequate nutrition,

clothing and shelter and facilities for reading, writing and expressing oneselves
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in diverse forms." Of course, the magriitude and content of the components of

this right would depend upon the extent of the economic development of the

country, but it imisl, in .inv view of llie nccessiirics of life and ciLso the right to

carry on such functions and activities as constitute the bare minimum expression

of human self.

The court in a 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.^^ Right to education is

necessary for the proper flowering of man, his mind and personality. Hence the

right to education is one of the facts of right to personal liberty. Further, Delhi

High Court in a famous case of Anand Vardhan Chandel vs University of Delhi^^

has held that education is a fundamental right under our constitution.

Child labour cannot be abolished unless and until the education is made

compulsory. Therefore, the relation of child labour is closely related to the child

education. The abolition of the child labour is preceded by the introduction of

compulsory education. Hence, compulsory education and child labour laws are

interlinked.

In labourers working on Salal Hydro Project vs State of J «Sc K^* the SC has

taken the pragmatic approach and directed the Central Government to persuade

the workmen to send their children to nearby school and arrange not only for

the school fees to be paid but also provide free of charge books and other

facilities such as transportation. The apex court also suggested that whenever
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the Central Government undertakes a construction project which is likely to last

for sometime, the Central Government should provide that children of

construction workers who are living at or near the project site should be given

facilities for schooling and this may be done either by the Central Government

itself or if the Central Government entrusts the project work or any part thereof

to a contractor, necessary provision to this effect may be made in the contract

with the contractor.'5

The Supreme Court in M C Mehta vs State of Tamil Nadu^^ has held that

the children are means under Article 45 of the Constitution to be subjected to

free and compulsory education until they completed the age of 14 years. The

court has, however observed that according to this provision all children upto

the age of 14 years are supposed to be in school, economic necessity forces

young children to seek employment.

In Gaurav Jain vs The Union of India''^ the Supreme Court of India felt

concerned about the children of the prostitutes. The apex court issued certain

directions to protect them frt>m exploilalion and lo bring Ihem ii\lo mainstream

of life by providing them free and compulsory education.

At the end it may be submitted that the Government has miserably failed

to ensure free and compulsory primary education to children. This in turn has

resulted in huge standing labour force. The judiciary declared that it is

unconscionable to try to develop on the basis of child labour and universal

elementary education is the precondition for the success of any development

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strategy. The judiciary demanded that the state should enact laws to provide

free, compulsory, relevant and quality education to all children.

At last, a fundamental right to education has been written into the

Constitution on Dec. 16, 2002.is It is intended to benefit India's 190 million 6 to

14 year olds, especially some 35 million currently not attending school. After

amending the Constitution, the law makes education for 6 to 14 years olds a

fundamental right within the meaning of Chapter III of the Constitution. Article

21 providing for Fundamental Right to life and personal liberty stood amended

to make education upto hit^h school a Fundamental right for all citizens of India.

The State Governments and Union Territory Administrations will thereafter

make arrangements for compulsory education for children across India to herald

the nation's march to cent per cent literacy.^^

After this amendment, no question arises whether the Government

intended to punish the economically weak parents who are unable to send

children to schools or the emphasis would be to encourage and promote parents

to bring children to .schools.

5.3.3 Article 21(A)

The Constitution (Eighty Sixth Amendment) Act, 2002 inserted a new

Article 21(A) to the Fundamental Rights of the Constitution which made the

right of education to the children of age 6 to 14 years a "Fundamental Right"

within the meaning of Part III of the Constitution. It also amended Directive
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Principles and Fundamental duties accordingly. This land mark development in

the Coi\stitutional history of India explicitly elevated right to primary education

to a fundamental right.

After this amendment, new Article 21A of the Constitution provides that

the State shall provide free and compulsory education to all children between

the age of 6 to 14 years in such a manner as the State may, by law determines.^^^

This Article has direct impact on the plight of children especially the child baour

who are forced towards labour markets rendering them illiterates. By making

right to free and compulsory primary education as a fundamental right, it may

be helpful to eliminate child labour from the society to some extent.

5.3.4 Article 23

Article 23 of the Constitution prohibits traffic in human being and beggar

and other similar forms of forced labour and any contravention of this provision

should be an offence punishable in accordance with the law. 'Traffic in human

beings' means selling and buying man and women like goods and includes

immoral traffic in women and children from immoral or other purposes.^o

Article 23 of the Constitution explicitly prohibits traffic in human beings and

forced labour and exploitation. Although this Article does not speak

particularly about children it applies to them and perhaps, it is more relevant in

their case. Slavery is included in the expression 'traffic in human being'.^^

Slavery is not expressly mentioned in Article 23 of the Constitution.

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Article 23 imposes a positive obligation on the state to take steps to

abolish evils of "traffic in human beings" and beggar and other similar forms of

forced labour. It protects the individuals not only the state but also against

private citizens. The protection under this Article is available to both citizens as

well as non-citizens.

Beggar and other forms of forced labour are prohibited by this Article,

The word beggar has not been defined in the Constitution but it has been

defined by Molseworth as "Labour or service exacted by a Government or a

person in power without giving remuneration for it", and in Wilson's Glossary

as "forced labour, one pressed to carry burden for individuals or public; under

old system when pressed by public service no pay was given" .22 Beggar means

involuntary work without payment. What is prohibited by this clause is the

making of a person to render service where he was lawfully entitled not to work

or to receive remuneration of the services rendered by him. This Article does

not prohibit forced labour as a punishment for a criminal offence.23

The Supreme Court of India has innovated new methods in the form of

Public Interest Litigation to provide justice to the poor and weaker sections of

the society who are derived basic rights and for whom liberty and freedom have

no meaning.24 After the introduction of the concept of Public Interest Litigation,

the Supreme Court has assumed the role of the guardian of the weaker and poor

sections of the country by becoming the court for the poor and struggling masses

of the country .25

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In Peoples Union for Democratic Rights vs Union of India^^ the Supreme

Court considered the scope and ambit of Article 23 in detail. The court held tat

scope of Article 23 is wide and unlimited and strikes at "traffic in human beings"

and beggar and other forms of forced labour wherever they are found. In view

of Article 23 Bhagwati J, observed:

"What Article 23 prohibits is "force labour", that is, labour or service

which a person is forced to provide, and 'force', which would make such labour

or service 'forced labour', may arise in several ways. It may be physical force

which may compel a person to provide labour or service to another or it may be

force exerted through a legal provision, such as a provision for imprisonment or

fine in case the employee fails to provide labour or service, or it may even be

compulsion arising from hunger and poverty, want and destitution. The word

'force' must, therefore, be construed to conclude not only physical or legal force

but also force arising from the compulsion of economic circumstances which

leaves no choice or alternatives to a person in want and compels him to provide

labour or services even though the remuneration received for it is less than the

minimum wage."27 The Apex court further held that where a person who

provides labour or service to another for remuneration which is less than the

minimum wage amounts to forced labour under Article 23. Such a person

would be entitled to come to the court for ervforcement of his fundamental right

under Article 23 by asking the court to direct payment of the minimum wage to
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him so that, the labour or service provided by him ceases to be 'forced labour'

and the breach of Article 23 is remedied.2«

In this case, the Supreme Court not only created a history in the field of

child labour laws but also played a role of the protector of the interests of the

poverty ridden toiling nidsses of the society. The Court's attention was not

drawn in the usual form of a writ petition by the aggrieved workers, but a

voluntary organization had addressed a letter to Justice Bhagwati of the

Supreme Court and Court acted and directed the Government to take necessary

steps for punishing the violation of fundamental rights of citizens guaranteed by

Article 23 by private individuals.^^

In Sanjit Roy vs State of Rajasthan^o a writ petition was filed by the

Director of Social Work and research centre to bring to the notice of the S.C,

certain violations of the minimum wages Act, 1948. The apex court held that the

payment of wages lower than the minimum wages to a person employed on

Fammine Relief Work is Violation of Article 23. The court further held "where a

person provides labour or service to another for remuneration which is less than

the minimum wage, the labour or service provided by him clearly falls within

the scope and ambit of the word 'forced labour' and attracts the violation of

Article 23."3i

The labour taken from prisoners without paying proper remuneration

was forced labour and violative of Article 23 of the Constitution and it is duty of

the court to enforce their claim.^^

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In Bandhu Mukti Morcha vs Union of India,33 the Suprenie Court held

that when an action is initiated in the court through public interest litigation

alleging the existence of bonded labour the Government should welcome it as it

may give the Government an opportunity to examine whether bonded labour

system exists and as well as to take appropriate steps to eradicate that system.

This is the Constitutional obligation of the Government under Article 23 which

prohibits 'forced labour' in any form. The Supreme Court of India has further

expanded its protective arms cigiiinst all the aspects of exploitation and macie

certain directions to the Central Government or the State Governments for

identification, release and rehabilitation of bonded labour when miserable

conditioris of bonded labourers of stone quarries in Faridabad were brought to

the notice of the court by way of a letter. Justice Bhagwati observed;

"When a complaint is made on behalf of workmen that they are held in

bondage and are working and living in miserable conditions without any proper

or adequate shelter over their hands, without any protection or adequate

shelther over their heads, without any protection aj^ninst sun and rain, without

two square meals per day and with only dirty water from a nullah to drink, it is

difficult to appreciate how such a complaint can be thrown out on the ground

that it is not violative of the Fundamental rights of the workmen. It is the

fundamental right of everyone in this country to live with human dignity free

from exploitation.''^^
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A custom required that each householder of the village offer one day's

free labour to the Headman of the village. Such a custom was violative of

Article 23(1) of the Constitution which prohibits beggar and other forms of

forced labour.^^ jn Chandra vs State of Rajasthan^^ an order of the Sarpanch of

village calling one person from each family to come with spade and iron rod for

making the embankment of the village tank and providing for a fine to be

imposed upon person who failed to come, was held to the violative of Article

23(1).

In Mukesh Advani vs State of M.P.,^^ the Supreme Court of India directed

the Central Government to specify minimum wages for occupations in flag-stone

mines as a first step against exploitation of workmen. The Supreme Court took a

serious note of the State Government's failure to implement the provisions of the

Bonded Labour System (Abolition) Act, 1976 and the failure to provide effective

rehabilitation of freed bonded labour.^s

Exception to this Article that the State is empowered to impose

compulsory service for public purposes.^*^ By imposing such compulsory service

the State cannot make any discrimination on ground only of religion, race, caste

or class or any of them. Compulsory military service or social services can be

imposed because they are neither beggar nor traffic in human beings.'^o

In Neeraja Chaudhary vs State of M.P.^i the Supreme Court of India made

directions not only for identification and release of bonded labour but also for

their rehabilitation. This issue of rehabilitation of freed bonded labourers was

 144

raided before the court in this writ petition which was based upon a letter

addressed to one of the JLuij';cs of the Supreme Court. This letter was directed to

be treated as a writ petition. The Supreme Court observed:

"It is not enough merely to identify and release bonded labourers but it is

equally, perhaps more, important that after identification and release, they must

be rehabilitated, because without rehabilitation, they would be driven by

poverty, helplessness and despair into serfdom once again. Poverty and

destitution are almost perennial features of Indian rural life for large numbers of

ur\fortunate ill starred humans in this country and it would be nothing short of

cruelty and heartlessness to identify and release bonded labourers merely to

throw them at the mercy of the existing social and economic system which

denies to them even the basic necessities of life, such as food, shelter and

clothing."42

5.3.5 Article 24

Article 24 of the Constitution provides that, "No child below the age of 14

shall be employed to work in any factory or mine, or engaged in any other

hazardous employment". This provision is certainly in the interest of public

health and safety of life of children. Children are assets of the nation.

In People's Union for DcMTiocratic Rights vs Union of India,"*-^ tlie Supreme

Court of India held that the employment of children below 14 years of age was

being hazardous, ultravires of the Article 24 of the Constitution. The Apex court
 145

further held that the construction work is hazardous employment and therefore

under Article 24 no child below the age of 14 years can be employed in the

construction work even if construction is not specified in the schedule to the

Employment of Children Act, 1938.44 In this judgement, Mr. Justice Bhagwati

observed that thi.s is a sad and deplorable omission and advised the State

Government to take immediate steps for inclusion of construction work in the

schedule to the Act.-^^ The court further held "we have Article 24 of the

Constitution which provides that no child below 14 years shall be employed to

work in any factory or mine or engaged in any other hazardous employment.

This is a Constitutional prohibition which, even if not followed by appropriate

legislation, must operate propriovigore and construction work being plainly and

undoubtedly a hazardous employment, it is clear that by reasons of this

Constitutional prohibition, no child below the age of 14 years can be allowed to

be engaged in construction work. Therefore, there can be no doubt that

notwithstanding the absence of specification of construction industry in the

schedule to the employment of Children Act, 1938, no child below the age of 14

years can be employed in construction work and the Union of India as also every

State Government must ensure that this Constitutional mandate is not violated

in any part of the country."^^

The Article 24 of the Constitution however, does not prohibit the

employment children in any innocent or harmless job or work. It means that

children below 14 years of age can be employed in any innocent or harmless job
 146

or work. Article 24 prohibits the employment of children in factories and

hazardous employment.

In Labours Working on Salal Hydro Project vs State of J & K,47 the court

has reiterated the principle that construction work is a hazardous employment

and children below 14 cannot be employed in this work. In this case also, the

action was not brought out by the aggrieved labourers working on Salal Hydro

Project. But by the People's Union for Democratic Rights by writing a letter to

Justice Deasi with a copy of news idem published in Indian Express dated

August 26, 1982. This letter was treated as a writ petition. The question was

raised before the Supreme Court whether children under 14 years of age can be

allowed to work in construction projects. The court observed "Construction

work is a hazardous employment and no child below the age of 14 years can

therefore be allowed to be employed in construction by reason of the prohibition

enacted in Article 24 and this Constitutional prohibition must be enforced by the

Central Government."-"^

In this case. Justice Bhagwati further suggested: "the Central Government

would do well to persuade the workmen to send their children to a nearby

school and arrange not only for school fees to be paid but also provide free of

charge books and other facilities such as transportation. We would suggest that

whenever the Central Government undertakes a construction project which is

likely to last for some time, the Central Government should provide that

children of construction workers, who are living at or near the project site.
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should be given facilities for schooling and this may be done either by the

Central Goveriunent itself, or if the Central Government entrusts the project

work or any part thereof to contractor, necessary provision to this effect may be

made in the contract with the contractor."'*^

The judgcnuMTt oi ihc Apex rourt in this cnsc covers only children of

workmen engaged in government construction or entrusted to a contractor.

At present, the numbers of constructions are undertaken by private

contractors. It has been seen in Shimla district that numbers of constructions are

undertaken by private individuals as well as by Government through

contractors. The children of these workmen are not attending school because

these workmen are migratory. The government should also take steps to

improve the conditions of the children of these workmen.

In pursuance to duty cast on the Government in Labourers Working in

Salal Hydro Project vs j & K,'" the Government of India enacted the child labour

(Prohibition Regulation) Act, 1986 which prohibits the employment of children

below 14 years of age.

In M.C. Metha vs State of T.N.^i the Supreme Court has directed the

Uruon and State Governments to identify child labour working in hazardous

and non hazardous processes and occupations, withdraw them from work and

provide them with quality education. The employers of the child labour have

been directed to pay Rs.20,000 with regard to each child labour and the

Government has been asked to contribute Rs.5000 to the corpus, in case it fails to
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provide employment to an adult member of the child labour family. The fund so

raised would be spent towards the education of the child labour.

The Apex Court further held "as far as the non-hazardous jobs are

concerned, the inspector shall have to see that the working hours of the child are

not more than four to six hours a day and it receives education at least for two

hours each day. It would also be seen that the entire cost of education is borne

by the employer."52

In the case of M.C. Mctha vs State of T.N.^^ the Supreme Court directed

that a survey would be made of the all type of child labour which would be

completed within six months from today and court also directed the Secretary to

the Ministry of Labour, the Goveri-iment of India would apprise this court within

one year of today about the compliance of the directions issued to the Union and

State Goverr\ments.

The task of eliminating child labour is big, but not as to prove either

unwidely or burdensome. The financial implication would be such as to prove

a damper, because the money after all would be used to build up better India.

The poverty as such has not stood in the way of other developing countries from

taking care of child labour. That India is a significant exception to the global

trend toward the removal of children from the labour force and the

establishment of compulsory and universal primary school education as many

countries of Africa like Zambia, Ghana, Ivory Coast, Libya and Zimbabwe with

income levels lower than India, have done better in these matters. This shows
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that has caused the problem of child labour to persist here is really not dearth of

resources, but lack of real zeal. Let his not continue. Let us all put our head and

efforts together and assist the child for its good and greater good of the

country.54

This was for the first time that the Supreme Court of India issued

directions to the state in respect of children who are engaged in non-hazardous

occupations. The Supreme Court of India also issued directions that penal

provisions contained in the Child Labour (Prohibition and Regulation) Act, 1986

would be used where emplovmcnt of a child labour prohibited by the Act,

would be found.^•'^ The enforcement officials in various states have an important

role to play. They not only have to ensure the proper implementation of the

various provisions of the Child Labour (Prohibition and Regulation) Act, 1986

but also the judgement of the Supreme Court in the case of M.C. Metha vs State

of Tamil Nadu.56 They also have the responsibility of removing working

children from hazardous industries. Therefore, it is very essential that these

enforcement officials are fully equipped with a thorough knowledge of child

labour legislation Constitutional provisions. Supreme court and high court

judgemnets on child labour and must be trained in various administrative and

enforcement procedures.

In Srirama Babu vs Chief Secretary, Govt, of Karnakata,^^ the Karnataka

High Court held that there should be a complete ban on the employment of

children below the age of 10 years. This judgement has tried to rectify the
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lacunae of the child labour (Prohibition and Regulation) Act, 1986 which was

that it did not set aside a minimum age under which no child should be

permitted to be employed, even in the 'regulated' sector.

In M.C. Mehta vs State of Tamil Nadu,58 the Court declared that while

starting with the compensation measures, priority should be given to the most

hazardous employment. The court further directed that priority should be given

to the projects which are covered under the National Child Labour projects. All

the projects under the National Child Labour projects are not necessarily

covered as prohibited employment under the Child Labour (Prohibition and

Regulation) Act, 1986. Some of the processes which are not covered by the 1986

Act, but have been covered in the judgement are precious stone polishing

industry, tile industry and the slate making industry. This has lead to an

inclusion of unscheduled occupations and processes under the 'hazardous'

category of employment.

5.4 Directive Principles of State Policy

Besides the above provisions provided in the Part-Ill of the Constitution

relating to child labour, there are number of directions to the state in Part-IV of

the Coristitution to ensure safety and health of working children and to

eliminate the exploitation of child labour. The protection provided in the

Constitution to children will not be conclusive without the study of welfare

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provisions to children under Part-IV of the Constitution Part-IV of the

Constitution deals with the "Directive Principles of State Policy".

Incorporation of Directive Principles of State Policy casting the duty upon

the state to strive to promote the welfare of the people by securing and

protecting as effectively as it may, a social order in which justice - social,

economic and political shall inform all the institutioris of the national life, is not

idle point but command to actions.59

5.4.1 Article 39

Article 39 of the Constitution provides that: "the state shall, in particular,

direct its policy towards securing:

(e) that the health and strength of workers, men and women, and the

tender age of children are not abused and that citizens are not forced

by economic necessity to enter avocations unsuited to their age or

strength;

(f) that children are given opportunities and facilities to develop in a

healthy manner and in conditions of freedom and dignity and that

childhood and youth are protected against exploitation and against

moral and material abandorvment/'^o

In M.C. Mehta vs State of Tamil Nadu & others" the court held that the

employment of children within the match factories directly connected with the

manufacturing process upto final production of matchsticks or fireworks should

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not at all be permitted as it is hazardous. Children can, however, be employed

in the process of packing but it should be done in area away from the place of

manufacturing to avoid exposure to accidents. The court was also of the view

that minimum wage for child labour should be fixed. It must be atleast 60% of

prescribed minimum wages for adult employee doing same job to be given to

child in view of special adaptability of child's tender hand to such work.^^

5.4.2 Article 41

Article 41 of the Constitution provide that

"The state shall, within the limits of its economic capacity and

development, make effective provision for securing the right to work, to

education and to public assistance in cases of unemployment, old age, sickness

and disablement and in other cases of underserved want."^3 Article 41 deals

with social services. Article 41 has been held to include medical education.^

Again, in M.C. Mehta vs State of Tamil Nadu & others, the Court held

that it is necessary that special facilities for providing the quality of life of child

should be provided. This would require facility for education, scope for

recreation as also providing opportunity for socialisation. Facility for general

education as also job oriented education should be available and the school time

should be so adjusted that employment is not affected.^s

5.4.3 Article 42

Article 42 requires the state to make provision for securing just and

humane conditions of work. Article 42 has been incorporated in the

 153

Constitution for the welfare of the workers. Article 42 provides the basis of the

large body of labour law that obtains in India. The courts may not enforce

directive principles as such, but they must interpret laws so as to further and not

hinder the goals set out in the directive principles.^^

5.4.4 Article 43

The directive principles contained in Articles 42 and 43 are incorporated

for the welfare of the workers. This article deals with living wages of workers.

Article 43 provides that the state to endeavour to secure, by suitable legislation,

or economic organization or in any other way, to all workers, agricultural,

industrial or otherwise, work, a living wage, conditions of work ensuring a

decent standard of life and full employment of leisure and social and cultural

opporturuties. Article 42 relates or\ly to working class. Where a self-employed

man takes the help of his family members including children, for gainful activity

because of economic compulsion will not be covered by this Article. Such

problem can may be solved by a faster rate of economic growth and social

justice. The terms 'abuse' and exploitation under Article 39(e) and Article 39(f)

respectively are wider in social context as compared to the Article 42.

Article 43 refers to a living wage and not minimum wage. The concept of

living wage includes the provisions for education of children.^''

The Union Ministry of Labour is making efforts to bring out a new

legislation to ensure social security for at least 37 crore laboures working in the
 154

unorganized sector. Apart from this, the Union Government is also committed

to eradicate child labour from the country by the end of year 2007. The

Government had also decided to open 6000 elementary schools to provide free

and compulsory education to poor children, especially for child labour. The

Government had selected 150 districts from various states of the country to

provide basic education to the child labourers and children from poor farrxilies,

who are deprived of education facilities. The Nation was facing a crisis of social

security as at least 37 crorc people were working in the unorganized sector. The

Government will soon bring out a new legislation to ensure social security in the

form of pension and medical facilities for these labourers. The draft policy of

this legislation is expected to be ready by the middle of June this year.^s

5.4.5 Article 45

The Constitution (Eighty Sixth Amendment) Act, 2002 also amended

Article 45 of the Directive Principles. Article 45 provides "The state shall

endeavour to provide early childhood and education to children below the age

of 6 years."^^ Prior to the amendment 2001, the said Article that the state to

endeavour to provide, within a period of ten years from the commencement of

the Constitution, for free and compulsory education for all children until they

complete the age of fourteen years. The directive in Article 45 is not confined to

primary education but providing free education upto an age of 14 years,

whatever the stage of education it may come to. The main object of Article 45 is
 155

to abolish illiteracy from the country. Article 24 prohibits employment of a child

below the age of 14 years. Article 45 is supplementary to Article 24. It means

that child is not to be employed below the age of fourteen, he must be kept

occupied in some educational institution. Article 45 also supplements Articles

39(e) and 39(f) of the Constitution. The directive in Article 45 has not been fully

implemented as yet although more than 50 years have elapsed since the

independence.

When Article 41 and 45 are read with Article 21 of the Constitution,

results into that the citizens iiave a fundamental right to education. The said

right flows from Article 21. In other words every child or citizens of this country

has a right to free education until he completes the age of fourteen years.

Thereafter this right to education is subject to the limits of economic capacity

and development of the State. This endeavour was to be made within a period

of ten years from the date of the commencement of the Constitution. The period

of ten years as provided in the Article 45 has lost its significance as the State

could not provide the basic amenities to the vast majority of children even after

more than half a century. The ideal set in the Constitution has remained a denial

of promise as 80% of the children between the age of group of 5-14 years are

without any basic and elementary education, health, assess to nutrient food and

leisure7°

Article 45 does not speak of the limits of its economic capacity and

development as does Article 41, which inter alia speaks of right to education.^^
 156

The state can be obliged to ensure a right to free education of every child upto

the age of 14 years^^

The Supreme Court directed the state to the following extend:

"Be that as it may, we must say that at least now the state should honour

the command of Article 45. It must be made a reality at least now. Indeed, the

National Education Policy 1986 says that the promise of Article 45 will be

redeemed before the end of this century. Be that as it may, we hold that a child

has a fundamental right to free education up to the age of 14 years.'"''^

The right to education further means that a citizens has a right to call

upon the state to provide educational facilities to him within the limits of its

economic capacity and development.'^'' The Supreme Court negated the

apprehension that reading of the right to education into Article 21 would enable

each and every citizen of this country to approach the courts to compel the state

to provide him such education as he chooses.

In a number of cases, the judiciary demanded that the state should enact

laws to provide free and mandatory education. The judiciary also demanded

that it is duty of the state to provide free and compulsory elementary education

to all citizens. Finally it can be said that the judiciary has played its role in

declaring primary education forming part of Article 21 of the Constitution. In

view of that the Government at last passed the Constitutional (86* Amendment)

Act, 2002. After passing of this Act, now right to education has become
 157

fundamental right of every citizen of India. Now, it is the duty of the state to

make arrangements for compulsory education for children upto 14 years.

The Directive principles contained in I'art IV constitute the stairs to climb

the high edifice of a socialistic state and the fundamental rights are the means

through which one can reach the top of th" edifice. The Directive principles

form the fundnmenlal featinos and the soi ial conscience of the Constitution

which enjoins upon the state to implement lli.'se directive principles.''^

5.4.6 Article 46

The Article is titled as promotion of educational and economic interests of

scheduled castes, scheduled tribes and other weaker sections. Article 46 of the

Constitution of India provides tliat "the stale shall promote with special care the

educational and economic interests of tine weaker sections of the people and in

particular of the scheduled castes and the scheduled, and shall protect them

from social injustice and all forms of exploitat ion."''^

These Constitutional pro\'ision-s relatiiig to children for the poor people of

India. In democracy there exists Rule of La v. The rule of law does not mean

that the protection of the law must be available only to a fortunate few or that

the law should be allowed to be prosecuted bv the vested interests for protecting

and upholding the status t|uo under the guise of enforcement of their civil and

political rights. The rule of lav^ is meant foj- the poor, ignorant or in a socially or

economically disadvantaged position also, tl.ough today it exists only on paper

 158

and not in reality. Large numbers of men, women and children who constitute

the bulk of our population are today living a sub-human existence in conditions

of abject poverty, utter grinding poveriv h;is broken their back and snapped

their moral fibre. They are the persons J or whom the enforcement of the

Constitutional provisions be ensured.

5.4.7 Article 51(c)

Article 51(c) of the Constitution of India provides that the state shall foster

respect for international law and treaty c^blij.ations in the dealings of organised

peoples with one another.^^"^ Indian being a member of the United Nations

Organisation has to abide by the directions and conventions adopted by the

United Nations Orj',ani/,ati()n and its subsidii ;', Drganizations like, ILO, UNICEF,

WHO, FAO, WTO to protect the rights nf cbildren in India. Since International

Human Rights Law imposes certain obiij^ilions on India to comply with its

provisions, this particular Article 51(c) has rn(Me relevance than even before.

In Jolly George Varghese vs Bank of India,^^ j-^g court held that

international covenants are not enforceable b\' the Indian courts unless backed

by legislation. They are not self executing. The court further held in this case

that "International conventional lav\' must go through the process of

transformation before the international treats could became an internal law".

In Gramophone Company vs B.B.Pandey^^ the Supreme Court of India

held that in interpreting a statue the courts w ould construe it in such a way as to

avoid conflicts with International Law.

 159

In D.K. Basu vs State of West BengaF^ the Apex Court held that as long as

the international convention is consistent with the fundamental principles as

interpreted by the judiciary, such international convention can be enforced by

the courts, even if such convention has not been incorporated in the domestic

law of the country.

In Visakha vs State of Rajasthan,80 the court held that it is now an

accepted rule of judicial construction that regard must be had to international

conventions and norms for constructing domestic law when there is no

inconsistency between them and when there is a void in domestic law.

5.5 Fundamental Duties

The Constilutit)n (F.iglil\' Sixth Amendment) Act, 2002 inserted a new

clause (k) to Article 51-A to the I'undamcntal duties. This amendment has made

the Constitution under an obligation towards children. After this amendment,

Article 51-A(k) of the Constitution provides that it shall be the duty of every

citizen of India who is parent or guardian to provide opportunities for education

to his child or ward between the age of 6 and 14 years.^oa The Article 51A(k)

imposes a Fundamental duty on parents or guardians to encourage and promote

to bring children to schools, rather than to punish the economically weak

parents. It means that parent or guardian must provide opportunities to their

children for education.

Before the Amendment, Article 45 of the Constitution provided that the

State is to make provisions within ten years for free and compulsory education
 160

for all children until they complete the age of 14 years. After this amendment,

the crucial age segment of 0 to 6 years has been left out from the purview of the

Fundamental Rights and placed under the unenforceable Directive Principles of

the State Policy. Early childcare is indeed an integral aspect of education. In

addition, there is the important issue of deciding as to whose legal liability it is if

the child does not go to school once the state has the provision for free schooling.

On the other hand, if the pnrcnt or guardian of the child who earns Rs.70/- per

day as a daily wage worker, then how he can afford sending their children to

schooling. From my point of view, first of all, the state must initiated measures

to eliminate poverty from the society, only then we are in a position to provide

better education to the children. The problem of education is directly related to

the poverty.

The above provisions of the Constitution and various judicial decisions

clearly cast a heavy responsibility on the part of the State for the welfare of the

children. Therefore, it is the primary obligation of the State to protect the

children, lookafter the welfare, well being of the children in all its dimensions

and to provide all facilities for developing their personalities.

5.6 The National Commission to Review the working of the Constitution

Regarding Protection of Children:

The National Commission to review the working of the Constitution

headed by Justice Venkata Chalaiah made some significant recommendations

 161

regarding the protection of children.^^ With regard to Right to Education, the

Commission had recommended to add to the Constitution of India:

"Every child shall have the right to free education until he completes the

age of fourteen years and in the case of girls and members of scheduled castes

and scheduled tribes, until they complete the age of 18 years."

The Commission nlso nvommendod to add Article 24A to the

Constitulion of Iinliii:"-

"Every child shall have the right to care and assistance in basic needs and

protection from all forms of neglect, harm and exploitation."

The Commission also recommended that it should be laid down in Article

45 that "the state shall make provision for education beyond the age of 14 years

within the limits if its economic capacity and stage of development". The

commission recommended that the heading of Part IV of the Constitution should

be amended to read as "Directive Principles of State Policy and Actions".^3 The

commission recommended to incorporate as Fundamental duty in article 51A of

the Constitution that "duty of industrial organizations to provide education to

children of their employees". The commission examined the real status of

children in India.

In India, the state of social infrastructure is disturbing. Country like India

having over one billion people and around 26.1% of the population living in

extreme poverty in 1999-2000. India was a home to 9.33 million child labourers

of the age group 5 to 14 in 1999-2000 which constitutes 4.12% of the child

population.84 The arrangement for their education, health and well-being are

wholly inadequate both quantitatively and qualitatively. 96.4% of the primary

education budget goes for salaries alone. India has the largest number of

children engaged in child labour in the world in absolute numbers. As per the

estimates for 1995-96, there were 173 million in the age group of 6 to 14. Of

these, 110 million children were estimated to be out of school. Of these 110

million children, 60 million are girl children.^s

 163

Reference

1. See, The Preamble of the Constitution of India, 1950.

2. Mohini Jain vs State of Karnatka, AIR 1992 SC1858 at p.l863.

3. Balaji vs State of Mysore, AIR 1963 SC 649.

4. AIR 1952 Cal. 825.

5. AIR 1957 Raj 10

6. Yus if Abdul Aziz vs State of Bombay 1954, SCR 930

7. See, Article 21 of the Constitution of India.

8. Supra note 2

9. 1993 1 s e c 645

10. AIR 1981 SC 746

11. Ibidatp.753

12. See, M.C. Mehta vs State of T.N. & Others AIR 1991, SC 417 at p.418

13. See, AIR 1978 Delhi, p.308

14. AIR 1984 SC 177

15. AIR 1984 SC 177 at 183 Id at p.l83

16. See, Supra note 12

17. AIR 1997 SC 3021

18. President APJ Abdul Kalam gave his assent to the Constitutional (93'^'-*
Amendment), Bill 2002, nov\^ notified in the gazettee as the
Constitution (86* Amendment Act, 2002).

19. The Tribune, Dec. 17, 2002, Chandigarh

19a. See, Article 21-A of the Constitution of India

20. Raj Bahaduar vs Legal Remebrancer AIR 1953 Cal. 522

21. Dubar Goala vs Union of India AIR 1952 Cal. 496

 164

22. Seervai, H.M., Constitution of India V.I N.. Tripathi Private Ltd.
Bombay
23. Panday, ].N. Constitutional l.nw of India 1997 Control Law Agency,
Allahabad at p. 237.
24. S.P. Gupta v.s Union of India AIR 1982 SC 149
25. People's Union for Democratic Rights vs Union of India AIR 1982 SC
1473

26. Ibid.

27. Ibid Id at p.l475

28. Ibid.

29. Ibid.

30. AIR 1983 SC 328.

31. Ibid.

32. Deena vs Union of India AIR 1983 SC 1155

33. AIR 1984 SC 802

34. Ibid.

35. Kahason Thangkhul vs Simtri Shaili AIR 1961 Manipur 1

36. AIR 1959 Raj 186

37. AIR 1985 SC 1363

38. P. Shivaswamy vs State of A.P. 1988 Lab. IC. 1680

39. Article 23(2) of the Constitution of India

40. Dulal Samanta vs D.M. Howarh AIR 1958 Cal. 365

41. AIR 1982 SCI 099

42. Ibid.
43. AIR 1983 SC 1473

44. Ibid
 165

45. Section 3A of the Employment of Children Act, 1938

46. Supra note 43 at p.l480

47. Supra note 14

48. Ibid.

49. Ibid.

50. Ibid.

51. AIR 1997 SC 699 at p.710

52. Id at p. 711

53. Supra note 51

54. Supre note 52

55. Supra note 51

56. Ibid.
57. Writ Petition No. 1351 of 1997 in the High Court of Karnatka, un
reported.

58. Supra note 51

59. Fatechand Himmatlal vs State of Maharashtra AIR 1977 SC 1825 at p.

1833.

60. See, Article 39 of the Indian Constitution

61. See Supra note 12

62. Ibid.

63. See Article 41 of the Indian Constitution

64. Samir Kumar Das vs State AIR 1982 Pat. 66.

65. See, Supra note 12

66. UPSE Board \'s I l.iri Shankdr AIR 1979 SC 65.

67. Pandey J.N„ Constitutional Law of India 31^t Edn. 1997 CLA,
Allahabad.
 166

68. The Tribune, May 12, 2003, Chandigarh.

69. See, Article 45 of the Indian Constitution.

70. Awards Digest, Vol. XXVI-11-12 Nov.-Dec. 2000, p.302.

71. Unni Krishnan, jTV SUile of A.P. AIR 1993 SC 2178 iU p. 2232.
72. Id P. 2196-97.

73. Id P. 2233.

74. Id P. 2178.

75. State of Kerala vs V.M. Thoas AIR 1976 SC 490

76. See, Article 46 of the Indian Constitution

76a. See Article 51(c) of the Constitution of India

11. AIR 1980, SC 470

78. AIR 1984, SC 667

79. AIR 1997, SC 610

80. (1997) 6 s e c 241

80a. See, Article 51A(k) of the Constitution of India

81. Report of the National Commission to Review the Working of the

Constitution, Justice Venkatachaliah, Vol. 1, 2002, Universal Law
Publishing Company.

82. Ibid at p. 66

83. Ibid at p.70.

84. Economic and Political Weekly, January 10, 2004 Child Labour and
Household Characteristics in Selected States, National Sample Survey
55* Round, Suresh Chand Aggarwal, p.l73.

85. Govt, of India 1995-96 Estimates MHRD, NCERT, Provisional

Statistics,