CHAPTER - VIII

JUDICIAL APPROACH TO
THE PROBLEM OF CHILD LABOUR

“The blood and tears, sweat and toil of young innocents are an integral part of India’s
foreign exchange earnings. Hardly a single case and the implementations of child protection
legislation is the waterloo of welfare jurisprudence relating to the most vulnerable of this human
sector”.

V.R. Krishna Iyer 218

The Indian Judiciary has passed number of judgments regarding children. The issues of
children have never been an issue of interest, both, for legislators as well as for the judiciary.
Most of the legislations framed with respect to children are to achieve either a target or at a time
when a critical report had to be submitted to an international agency. In spite of this the judiciary
has passed some comprehensive judgments on the issue of child labour

The judiciary has almost brought a revolution in the life of child workers in India and it
has time and again interpreted and developed the laws to eradicate the child labour. The courts
have always interpreted and applied the law so as to promote the cause of justice and to meet the
hope and aspiration of the children as per the mandates of the constitution. The concern of the
courts for the under privileged poor section of the society is aptly reflected in Bihar Legal
Support Society. The Chief Justice of India and others. The Court said that the weaker section of
Indian humanity have been deprived of justice for long, years they have had no access to justice
on account of their poverty, ignorance and illiteracy.

The majority of the people of our country are subjected to denial of access to justice on
account of the socially and economically disadvantageous position. The apex court, therefore,

218
Former Judge, Supreme Court of India

267

Andhra University, Visakhapatnam

regarded it as its duty to come to the rescue of those deprived or vulnerable sections of India
humanity in order to help them realize their economic and social entitlements and to bring to an
end their oppression and exploitation.

The Constitution is a Written Constitution guaranteeing justice, liberty and equality. We

attempted to achieve administrative and political unity and an economic and social revolution
under a democratic Constitution; we aimed at a ‘synthesis’ which could ensure economic justice
with political safeguard and political justice with economic safeguards. For achieving these
objectives, we have three organs of Governments, the legislature, the executive and the judiciary.
Each of these is Supreme within the sphere allotted to it. Thus rule of law an independent
authority is required or absolutely essential and this is furnished by the court of justice. The
Supreme Court of India 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 ground norms for other
legislation. Our Constitution accords a dignified and crucial position to the judiciary.

The Supreme Court is at the apex of the well-ordered and well-regulated judicial
structure of the country. It expounds and defines the true meaning of law. It is the ultimate
interpreter of the Constitution. Courts are to contribute to laws growth without overstepping the
boundaries of the system; it is the duty of the judiciary to recognize the development of the
nation and to established principles of the position which the nation in its progress from time to
time assumes. Indian judiciary is charged with the duty of holding the balance between the state
and the citizen, and sometimes between the state and the individual. It has to hold the scales even
in the legal combat between the rich and the poor, the mighty and the weak without fear and
favour.

The role of the judiciary in India has been quite significant in promoting the child
welfare. Mr. Justice Suba Rao, the former Chief Justice of India, rightly revoked, “Social Justice
must begin with the child. Unless the tender plant is properly nourished, it has little chance of
growing into strong and useful trees. So, the first priority in the scale of social justice should be
given to the welfare of children”.

Our written constitution guarantees social justice, liberty and equality to all its citizens.
For achieving these objectives, we have three organs of government, the legislature, the
268

Andhra University, Visakhapatnam

executive and, the executive and the judiciary. Each of these is supreme within the sphere
allotted to it. To interpret the spheres and enforce the rule of law, an independent authority is
absolutely essential and this is furnished by the Courts of Justice. The Supreme Court of India, at
the apex court has been assigned a very important role, and constituted as a guardian of the
constitution which is the yardstick of ground norms for other legislation.

Our constitution accords a dignified and crucial position to the judiciary. It is the greatest
unifying and integrating force of our country. The Supreme Court is at the apex of the well –
ordered and well –regulated judicial structure of the country. It expounds and defines the true
meaning of law. It is the ultimate interpreter of the constitution and this puts a second brake on
the legislative and the executive the first being the political check of the people themselves. The
constitution puts on obligation on every organ of the state, including the judiciary, to usher in a
new social order in which justice-social, economic and political and equality of status and
opportunity, prevail. The final burden of interpreting three elastic provisions it upon the courts.
Courts are to contribute to law’s growth without overstepping the boundaries of the system; in
other words, how to reconcile tradition and convenience or the claims of stability and those of
changes. It is the duty of the judiciary to recognize the development of the nation and to apply
established principles of the positions which the nation in its progress from time to time assumes.

The judicial organ would otherwise separate itself from the progressive life of community
and act as a clog upon the legislative and executive departments rather than as an interpreter.
Indian judiciary is charged with the duty of holding the balance even between a state or states
and the union and between the state and the citizen, and sometimes between the state and the
individual. It has to hold the scales even in the legal combat between the rich and the poor, the
mighty and the weak without fear or favour. The role of judiciary in India has been quite
significant in promoting the child welfare. Mr Justice Subba Rao, the former Chief Justice of
India, rightly remarked.

“Social Justice must begin with child unless tender plant is properly nourished; it has
little chance of growing into strong and useful tree. So, first priority in the scale of social justice
should be given to the welfare of children. It is in this spirit that the important that the apex court

269

Andhra University, Visakhapatnam

has laid emphasis on the fact that the important task of social justice is to take care of child , for
him lies the hope of nation ‘s future”.

Judicial review in India is based on the assumption that the Constitution is the
supreme law of the land, and all governmental organs, which owe their origin to the
Constitution and derive their powers, form its provisions, must function within the
framework of the Constitution, and must not do anything which is inconsistent with the
provisions of the Constitution. In a federal and independent judiciary whose basic function
is to act as an arbiter in a dispute arising between the Center and its constituent units under
the Indian Constitution, there is a specific provision in Article 13 (2) which says that the
State shall not make any law which takes away or abridges the fundamental rights enshrined
in the Constitution, and any way made in contravention of this provision shall, to the extent
of inconsistency, be void. The inclusion of this provision appears to be due to abundant
caution, as in the absence of such a provision, the Supreme Court would still have the power
to examine the Constitutionality of a law on grounds of infringement of fundamental rights.
This is so because Article 124(6) enjoins a judge of the Supreme Court to faithfully abide by
an oath or affirmation to uphold the Constitution. It is, therefore, the duty of the Supreme
Court to protect the fundamental rights against any encroachment or infringement by the
State.

One of the unique features of the Constitution is that a person may approach the
Supreme Court directly by that a person may approach the Supreme Court directly by
appropriate proceedings for the enforcement of his fundamental appropriate proceedings for
the enforcement of his fundamental rights219. The Supreme Court has an appellate
jurisdiction in appeals from the High Courts in a case which involves a substantial question
of law as to the interpretations of the Constitution.220 In addition, it confers on the Supreme
Court a wide jurisdiction in its discretion to grant special leave to appeal from any
judgement, decree, determination, sentence or order in any cause or matter passed or made

219
Article 32
220
Article 132
270

Andhra University, Visakhapatnam

by any court or tribunal.221 Any cause or matter may include any question of law as to the
interpretation of the Constitution

In this chapter an attempt has been made to assess the judicial response to the child
labour welfare as an effective instrument to improve the status of children in a accordance with
the spirit of the constitution. It is in this spirit that the apex court has laid emphasis on the fact
that the important task of social justice is to take care of the child. The judicial response
regarding the welfare of child labour as an effective instrument to improve the status of children
in accordance with the spirit of the Constitution.

The Supreme Court of India, in its judgement dated 10th December, 1996 in Writ Petition
(Civil) Number 465/1986, has given certain directions regarding the manner in which children
working in the hazardous occupations are to be withdrawn from work and rehabilitated, and the
manner in which the working conditions of children working in non-hazardous occupations are
to be regulated and improved. The judgement of the Supreme Court envisages:

(a) Simultaneous action in all districts of the country;

(b) Survey for identification of working children;
(c) Withdrawal of children working in hazardous industries and ensuring their education
in appropriate institutions;
(d) Contribution of Rs.20, 000 per child to be paid by the offending employers of
children to welfare fund to be established for this purpose;
(e) Employment to one adult member of the family of the child so withdrawn from
work, and if that is not possible a contribution of Rs.5000 to the welfare fund to be
made by the State Government;
(f) Financial assistance to the families of the children so withdrawn to be paid out of the
interest earnings on the corpus of Rs.20,000/25,000.00 deposited in the welfare fund
as long as the child is actually sent to the schools;
(g) Regulating hours of work for children working in non-hazardous occupations so
that their working hours do not exceed six hours per day and education for at least

221
Article 136
271

Andhra University, Visakhapatnam

 two hours is ensured. The entire expenditure on education is to be borne by the
concerned employer;
(h) Planning and preparedness on the part of Central and State Governments in terms of
strengthening of the existing administrative/ regulatory/ enforcement frame-
work (covering cost of additional manpower, training, mobility, computerization etc.)
implying additional requirement of funds.

Child Labour and Right to Education

The abolition of the child labour is preceded by the introduction of compulsory

education; 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 a series of cases has unequivocally declared that right to receive education
by the child workers is an integral part of right personal liberty, embodied in Article 21 of the
Constitution. These judicial mandates clearly demonstrate that 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, v. University of Delhi,222 has held that Education is a fundamental right under our
Constitution. The Court observed that:

“The law is, therefore, now settled that the expression of life and personal liberty in
Article 21 of the Constitution includes a variety of rights though they are not enumerated in Part
III of the Constitution, provided that they are necessary for the full development of the
personality of the individual and can be included in the various aspects of the liability of the
individual. The right to education is therefore, included in Article 21 of the Constitution.”

222
AIR 1978 (Del) 308
272

Andhra University, Visakhapatnam

 This right can be denied only by means of procedure established by the law as
contemplated in Article 21 of the Constitution, the procedure to the fair, just and reasonable must
pass a test under Articles 14, 19 and 21 of the Constitution.

Right to education, was for the first time recognized as a fundamental right in the case
of Anand Vardhan Chandel v. University of Delhi, 223 the Delhi High Court observed that the law
has now settled that the expression ‘life and personal liberty’ in Article 21 of the Constitution
includes a variety of rights, though they are not enumerated in Part III of the Constitution,
provided that they are necessary for the full development of the personality of the individual and
can be included in the various aspects of the liberty of the individual. The right to education is,
therefore, also included in Article 21 of the Constitution.

In the case of Bapuji Education Association v. State, 224 the Court expanded the contours
of personal liberty guaranteed by Article 21 of the Constitution to the extent it includes in its
ambit the right of the minorities to education. But the Supreme Court took notice of this
225
controversy in the case of Mohini Jain v. State of Karnataka, while deciding issues of
capitation fee in education institutions in Karnataka, the court held that the right to life under
Article 21 and the dignity of an individual couldn’t be assured unless accompanied by the right
to education. The very next year in 1993 the Supreme Court delivered the judgment in the case
226
of Unnikrishnan J.P. v. State of Andhra Pradesh. which overruled the decision in Mohini
Jain’s case, wherein, it was held that the right to education was a fundamental right available to
all the citizens of India but the said right is available only up to the age of 18 years.

The 86th Amendment Act was a result of the recommendations of the two committees
namely the Education Commission and Saikia Committee. The Amendment Act provided for the
following three insertions/changes in the Constitution. The insertion of Article 21-A, which
provides that the State shall provide free and compulsory education to all children between the
ages of 6-14 years in such a manner as the State may by law determine. An amendment to
Article 45, that is the provision for early childhood care and education to children below the age

223
(2000) 10 SCC 648
224
ILR 1985 KAR 80
225
1992 AIR 1858, 1992 SCR (3) 658
226 1993 AIR 2178, 1993 SCR (1) 594.
273

Andhra University, Visakhapatnam

of 6 years; the State shall endeavor to provide early childhood care and education for all children
until they complete the age of 6 years. In Article 51-A, after clause (j) the following clause (k)
has been inserted: “a parent or guardian shall provide opportunities for education to his children
or ward between the ages of 6-14 years”. Similarly, the Andhra Pradesh High Court in its
momentous decision in Murali Krishna Public School Case pronounced that; Right to education
to Dalits is a fundamental right and is the mandatory duty of the state of provide adequate
opportunities to advance educational interests by establishing schools” The decision of the
Andhra Pradesh High Court in the instance case has paved the way for better educational
opportunities for Dalit children. The Dalits, hitherto neglected specimens of humanity, who are
dragging their earthly existence under grinding poverty, have the fundamental right to education
and they can compel the State to take positive action to provide education facilities to their
children. Any failure on the part of the State to provide better and adequate educational facilities,
economic support and proper atmosphere to the children belonging to the lower support and
proper atmosphere to the children belonging to the lower strata of the society is violative of not
only Article 45 but also Article 21 of the Constitution. Thus, the judicial response to the right to
education is positive and progressive to secure in particular, to the children of weaker sections of
the society, the proclaimed ‘socio-economic justice.’

Child labour cannot be abolished unless and until the education is made compulsory. So
the relation of child labour is closely related to the child education. In 1986 and 1987 the
Government of India adopted a new set of policies toward working children, which for the first
time reflected the privately held views of officials in the Ministries of Labour and Education.

Frankly speaking, the Court has played a parental role while directing the Central
Government to persuade the workmen to send their children to nearby schools and arrange not
only for the school but also provide free of charge, books and other facilities such as
transportation etc. The Court also put forth the suggestion that whenever the Central
Government undertakes time, the Central Government should provide that the children of the
construction workers who are living at or near the project site should be given facilities for
schooling and this may be 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

274

Andhra University, Visakhapatnam

work any part thereof to a contractor, necessary provisions to this effect may be made in the
contract with the contractor.

The Court took a realistic view of the position of children and was in agreement with the
prevailing conditions of Indian society. The Court agreed that so long as there was poverty and
destitution in this Country, it was difficult to eradicate child labour. The Court, however, pleaded
for the positive role to be played by the Government and desired that attempt must be made to
reduce, if not eliminate the incidence of child labour, because it was, absolutely essential that the
child should be able to receive proper education with a view to equipping itself to become a
useful member of the society and to play a constructive role in the socio-economic development
of the Country.

In recently decided case the Supreme Court in M.C. Mehta v. State of Tamil Nadu.227 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 the Directive Principles of State Policy has still remained a far cry and though
according to this provision to be in school, economic necessity forces grown up children to seek
employment.

Child labour Welfare and Right to Education

The abolition of the child labour is preceded by the introduction of compulsory

education; compulsory education and child labour are interlinked. Article 24 of the constitution
bars employments of child below the age of 14 years. Article 45 which is incorporated by the
86th amendment in 2002 which gives the direction to the state to provide education to the child
below the age of six years .And the judiciary played a vital role in the making as education as a
fundamental right and the Judiciary rendered land mark judgements in the cases like M.C
228
Mehtav. State of Tamil Nadu and others, Mohini Jain v. State of Karnataka, 229
UnniKrishnan v. State of Andhra Pradesh, 230

227
(1996) 6 SCC 756.
228
AIR 1991 SC417
229
AIR 1992 SC 767
230
(1993) 1 SCC645
275

Andhra University, Visakhapatnam

 231
In M.C. Mehta v. State of Tamil Nadu and others, in this case the Supreme Court
observed that working conditions in the match factories are such that they involve health hazards
in normal course and apart from the special risk involved in the process of manufacturing, the
adverse effect is a serious problem. Exposure of tender age to these hazards requires special
attention. We are of the view that employment of children with match factories directly
connected with the manufacturing process uplift of final production of match sticks or fireworks
should not at all be permitted as Article 39(f) prohibits it.

The Court further observed that the spirit of the constitution perhaps is that children
should not be employed in factories as childhood is the formative period and in terms of Article
45 they are meant to be subjected to free and compulsory education, until they complete the age
of 14 years. Children can, therefore, be employed in the process of packing but packing should
be done in an area away from the place of manufacture to avoid exposure to accident.

Honourable Court further observed that the state (in this case Tamil Nadu) is directed to
enforce provisions relating to facilities for recreation and medical and attention may be given to
ensure provision of a basic diet during the working period to workers including children and
medical care with a view to sound physical growth.

The Court also opined that compulsory insurance scheme should be provided for both
adult and children employees for a sum of Rs 50000 by taking into consideration the hazardous
nature of this employment.

232
In Mohini Jain v. State of Karnataka, in this case Kuldip Singh J. had held that the
right to education was part of the fundamental right to life and personal liberty guaranteed by
Article 21. This sudden elevation of the right to education to the high constitutional pedestal
created a controversy aggrieved by this judgement some private educational institutions, which
run medical and engineering college challenged the correctness of that proposition and the matter
came before a larger bench consisting of Jeevan Reddy , Pandian, Mohan, Sharma and Barucha
JJ in Unni Krishnan v. State of Andhra Pradesh, 233 in this case three questions were raised for
the court’s determination namely (i) whether the Constitution of India guaranteed a fundamental
231
AIR 1991 SC417
232
AIR 1992 SC 767
233
Unni Krishnan v. State of Andhra Pradesh
276

Andhra University, Visakhapatnam

right to education to its citizen.; (ii) whether a citizen of India had the fundamental right to
establish and run an educational institution under article 19(1)(g) of the Constitution..; (iii)
whether the grant of permission to establish and the grant of affiliation by a university imposed
an obligation upon an educational institution to act fairly in the matter of admission of students.
The court’s judgment delivered by Jeevan Reddy J, on behalf of Pandhan J. and himself. Two
concurring judgment were written by Sharma J. and Mohan J.

Right to Education a Fundamental Right

Jeevan Reddi J, speaking on behalf of Pandian J. and himself, agreed with the dicta of
Mohini Jain that the right to education flowed directly from the right to life guaranteed by article
21 of the Constitution. The judge, however, differed with the view adopted by Kuldip Singh J, in
that case on the content and sweep of that right. Mohini Jain seemed to suggest that the citizens
could demand that the state must provide adequate number of medical college, engineering
colleges and other educational institutions to satisfy all their educational needs .Differing with
this formulation, the judge observed:

The right to education which is implicit in the right to life and personal liberty guaranteed
by Article 21 must be construed in the light of the directive principle in Part IV of the
Constitution. The three articles 45, 46 and 41 are designed to achieve the said goal among others.
It is in the light of these Articles that the content and parameters of right to education have to be
determined. Right to education, understood in the context of article 45 and 41 means (a) every
child/citizen of this country has a right to free education until he completes the age of fourteen
years and (b) after a child/citizen completes 14 years, his right to education is circumscribed by
the limits of the economic capacity of the State and its development.

The court, therefore, declared that “a child (citizen) has a fundamental right to free
education up to the age of 14 years.” Beyond 14 years, the right to education was subject to the
limits of the economic capacity of the state. The judge concede that “the limits of economic
satisfaction of the State.” He hastened to add that just because they relied upon some of the
directive principle to locate the parameters of the right to education implied in article21, it did
not follow that “each and every obligation referred to in Part IV gets automatically included
within the purview of Article 21.” Sharma, J. (for Barucha and himself) concurring, observed
277

Andhra University, Visakhapatnam

that whether the right to primary education provided in article 45 could an enforceable right
needed ‘a thorough consideration “if necessary by a larger Bench in a case where the question
would squarely rise. Mohan J. concurring concluded on the basis of his empirical finding that
“the right to free education up to 14 years is a fundamental right”.

It is respectfully submitted that the majority was virtually rewriting the Constitution by
converting adjective principle into a fundamental right. The proposition that every case one
should get free and compulsory primary education is undisputed. But making it a justifiable right
would create a number of problems. Firstly, the constitutional text does not support such a
proposition. The fact that the Constitution-makers put it in a part IV meant that it was not
intended to be a justifiable right. The government was required to endeavour to provide free and
compulsory education within ten years from the commencement of the Constitution this clearly
meant that it was not to be a fundamental right at least till the lapse of ten years from the
commencement of the constitution. Since when does it become a fundamental right was the
issue. Than it can be constituted obviously from the date of this decision. Will the state be held
liable to pay compensation for its failure to provide free and compulsory education if such a
failure has resulted in a manifest injury or loss to any person? If right to be educated becomes a
fundamental right, is there not a right not to be located. It is one thing to say that the state must
achieve the goal of universal education so that everybody will get an access to education which
is what is intended by Articles 45.

The right is not to education but to access to education. Is poverty not offending to the
right to live with dignity which the Supreme Court has held to be included with in Article 21.
Does one have a fundamental right to be not poor? To incorporate the directive principles within
the fundamental rights is doubtless very exciting and romantic but it can be articulated through
judicial process. Does we not trivialise the right under 21 by overstretching it. A mere judicial
declaration of its fundamentalness without the necessary changes in the social and economic
policies would merely tokenize that right.

Further, to say that the right to education beyond primary was subject to the economic
capacity of the state was to make it almost redundant. If a right to education is part of the right to
live, how can it be made dependent on the economic capacity of the state? If it is a fundamental

278

Andhra University, Visakhapatnam

right, it has got to be enforced irrespective of the economic capacity of the state. It can be
submitted that the economic incapacity ought not to be defence against violation or disregard of
a fundamental right. If once economic capacity becomes a defence against violation or disregard
of a fundamental right.

And once economic capacity becomes a defence for formulating the scope of a
fundamental right so many other aspects of Article 21 would be in jeopardy. Treatment of
prisoners in jails or protective homes will depend upon the economic capacity of the states.
Juveniles Justice would also depend upon the economic capacity of the states. It is respectfully
submitted that what is a fundamental right is not the right to education but access to education
and equal access is the fundamental right .The human rights incorporated in the directive
principles have to be achieved through suitable legislative and administrative policies.
Compulsion of democratic politics is bound to force the governments to go towards such
egalitarianism. The judicial process ought to refrain from its benevolent activism because such
activism is likely to benumb the public effort towards the articulation of these human rights.

Citizens Right to Establish Educational Institutions under Article 19(1) (g)

This was the thin end of the wedge. If private institutions have the right to establish
educational institutions as part of the fundamental rights to carry out on any trade or business
guaranteed by article 19(1) (g), they will naturally have the right to make profit and in order to
be able to make profit, they must have the freedom to charge such fees or even capitation fees as
the commodity called “education” can fetch. Jeevan Reddy J. observed that “commercialization
of education cannot and should not be permitted. He emphatically stated that “imparting
education cannot be trade, business or profession”.

The said activity could also not be called a profession within the meaning of article 19(1)
(g). Establishment educational institutions could be no stretch of imagination is treated as
“practicing any profession”. The judge, however, conceded that “a person or body of persons
have a right to establish an educational institution in this country”. But such a right, said the
judge, could not be an absolute right. It was subject to such a law as might be made by the state
in the interests of the general public. There was in fact no need to say all this because the
Constitution itself makes it very clear that the rights guaranteed by any of the six sub-clauses of
279

Andhra University, Visakhapatnam

clause (1) of article 19 are not absolute and are subject to reasonable restrictions in the interests
mentioned in those sub-clauses.

The judge observed that education not be considered as trade or business or even
profession, the answer to the question whether one has a fundamental right to establish an
educational institution by virtue of the right guaranteed by article 19(1) g) ought to have been in
the negative .If the constitution makers wanted to include the right to establish an educational
institution within the right to carry on any occupation, trade or business, would they have
provided specifically for the right of the minorities to establish educational institutions of their
choice in Article 30(1).

The court having conceded for the time being, without deciding conclusively that the
right to establish an educational institution was located in Article 19(1) (g), however, cautioned
that such a right would not carry with it right to recognition or the right to affiliation. The bodies
which gave the recognition and or affiliation were the authorities of the state. Such an authority
could, therefore, insist upon the fulfillment of such conditions as were appropriate to ensure not
only education of the requisite standard but also fairness and equal treatment in the matter of
admission of students. Since the recognizing/ affiliating authority was the state , it was under an
obligation to impose such conditions as were part of its duty enjoined by Article 14 of the
Constitution. The court, therefore, evolved a scheme which every authority granting recognition
/affiliation shall impose upon the institution seeking such recognition/ affiliation, Justice Jevan
Reddy observed.

The idea behind the scheme is to eliminate discretion in the management altogether in the
matter of admission. It is the discretion in the matter of admission that is the root of the several
ills complained of it. It is the discretion that has mainly led to commercialization of education.
Capitation ‘fee’ means charging or collecting amount beyond what is permitted by all; all the
Acts have defined this expression in this sense. We must strive to bring about a situation where
there is no room or occasion for the management or anyone on its behalf to demand or collect
any amount beyond what is permitted.

The salient features of the scheme laid down by the court are as follows (i) At least 50
percent of the seats in every professional college shall be filled by the nominees of the
280

Andhra University, Visakhapatnam

government or the university, as the case may be. These seats would be called ‘free seats’ .The
students for such fee seats shall be selected on merit determined on the basis of a common
entrance test where such a test is held, or in the absence of such a test , by criteria as might be
determined by the competent authority or appropriate authority , as the case may be . The
remaining 50 percent seats called the ‘payment seats’ shall be filled by those candidates who
would be prepared to pay the fees prescribed therefore. The allotment of students against
payment seats shall also be done on the basis of inter se merit determined on the same basis as in
the case of free seats. There shall be no quota reserved for the management or for any family,
caste or community which might have established such a college. It shall be competent for the
state to provide reservation of seats for constitutionally permissible categories (SC/ STs and
BCs) with the approval of the affiliating university. (ii) The number of seats available in the
professional college shall be fixed by the appropriate authority. No professional college shall be
permitted to increase its strength.

In M.C Mehta v. State of Tamil Nadu234 in our country, Sivakasi was one taken as the
worst offender in the matter of violating prohibiting of employing child labour. But child labour
by now is all India, evil, though its acuteness differs from area to area. So, without a concerted
effort, both the Central Government and various state Governments, this ignominy would not be
wiped out. Therefore, it is considered fit to travel by and the confines of Sivakasi to which place
the present petition initially related to .It would be more appropriate to deal with the issue in
wider spectrum and broader perspective taking it be a national problem and not appertaining to
any one region of the country. So the question is as to how the court can, and is required to,
tackle the problem of child labour.

While Article 24 of the Constitution has been a fundamental right since inception, Article
45 too has been raised to a high pedestal by Unni Krishnan. Though other articles are part of
directive principles, they are fundamental in the governance of our country, and it is the duty of
all organs of the State,235 to apply these principles. Judiciary, being one of the three principal
organs of the state, has to keep the same in mind when called upon to decide matters of great

234
AIR 1991 SC417
235
Article 37
281

Andhra University, Visakhapatnam

public importance. Abolition of child labour is definitely a matter of public concern ad
significance.

Besides the Constitution mandates, there are International commitments (under the
Convention of the Rights of the Child which was concluded by the U.N General Assembly on
20.11.1989) and the statutory provisions. But all the same child labour has continued despite the
aforesaid statutory enactments. The poverty is basic reason which compels the parents of a child,
despite their unwillingness, to get the child employed. It may be that the problem would be taken
care of to some extent by insisting on compulsory education. But even if it were to be so, the
child of a poor parent would not receive education, it per force it has to earn to make the family
meet both the ends.

Therefore, till an alternative income is assured to the family, the question of abolition of
child labour would really remain a well-‘o’ wisp. Since employment of children below the age of
14 years is a constitutional indication in so far as work in any factory or mine or engagement in
other hazardous work and since it has to be seen that all children are given education till the age
of 14 years in view of this being a fundamental right now, and since the wish embodied that the
tender age of children is not abused and citizens are not forced by economic necessity to enter
avocation committed to their age,236 and since children are to be given opportunities and
facilities to develop in a healthy manner and childhood is to be protected against exploitation as
visualized by Article39(f), it is necessary to see the fulfilment of the Child Labour (Prohibition
and Regulation) Act, 1986.

Accordingly the offending employer must be asked to pay compensation for every child
employed in contravention of the provisions of the Act a sum of Rs20000 and the Inspectors,
whose appointment is visualized,237 to secure compliance with the provisions of the Act, should
do this job .The Inspectors appointed would see that for each child employed in violation of the
provisions of the Act, the employer concerned pays Rs. 20,000 which sum could be deposited in
a fund to be known a Child Labour Rehabilitation-Cum-welfare fund. The liability of the
employer would not cease even if he could desire to disengage the child presently employed. It
would perhaps be appropriate to have such a fund district wise or areas wise. The fund so

236
Article 39 (f)
237
Section 17
282

Andhra University, Visakhapatnam

generated shall from corpus whose income be used only for the child concerned. The quantum
could be the income earned on the corpus deposited in high yielding scheme of nationalized bank
or other public body.

As the aforesaid income could not be enough to dissuade the parent/guardian to seek
employment of the child, the state owes a duty to come forward to discharge its obligation in this
regard, since the aforementioned constitutional provisions have to be implemented by the
appropriate government, The Child Labour (Prohibition and Regulation) Act, 1986, strictly
speaking a strong case exists to invoke the aid of Article 41 of the Constitution regarding the
right to work and to give meaning to what has been provided in Article 47 relating to raising of
standard of living of the population and Article 39(e) and(f) as to non-abuse of tender age of
children and giving opportunities and facilities to them to develop in a healthy manner, for
asking the State to see that an adult members of the family , whose child in employment in a
factory or mine in other hazardous work, get a job anywhere , in lieu of the child . This would
also see the fulfilment of the wish contained in Article 41 after about half a century of its being
in the paramount parchment like primary education desired by Article 45, having been giving to
the status of fundamental rights to the decision in Unni Krishnan. However, it is not necessary to
direct the state at this stage to ensure alternative employment in every case covered by Article 24
, as Article 41 speaks about right to work “ within the limits of the economic capacity and
development of the state”.

Instead, the matter is left to be sorted out by the appropriate Government. In those, cases,
where it would not be possible to provide job as above-mentioned, the appropriate Government
would, as it contribution grant, deposit in the aforesaid fund of Rs. 50000 for each child
employed in a factory or mine or in any other hazardous employment in case of getting
employment by an adult, the parent/guardian shall have to withdrew his child from the Job. Even
if no employment would be provided, the parent /guardian shall have to see that his child is
spared from the requirement to do the job, as an alternative source of income would have
become available to him. The employment given or payment made would cease to be operative if
the child would not be sent by the parent /guardian for education.

283

Andhra University, Visakhapatnam

 The apex court has given direction to the State Government to follow them:

1) A survey would be made of the aforesaid type of child labour which would be completed
within six month from today.
2) To start with work, could be taken up regarding those employments which have been
mentioned in Article 24 which may be regarded as core section, to determine which
hazardous aspect of the employment would be taken as criterion.
3) The employment to begin as per our direction could be done entailed to other assured
employment.
4) The employment so given could be as well be the industry where the child is employed,
a public under taking and would be manual in nature in as much as the child in question
must be engaged in doing manual work.
5) In those cases where alternative employments would not be made available as foresaid,
the parent /guardian of the child concerned would be paid the income which could be
earned of the corpus which would be sum of Rs. 25000 per child, every month.
6) On discontinuation of the employment of the child, his education would be assured in
suitable institution with a view to make him better citizen.

It may be pointed out that Article 45 mandates compulsory education for all children until
they complete the age of 14 years; it is also required to be free. It would be the duty of the
Inspectors to see that this call of the Constitution is carried out.

In Bandhu Mukti Morcha v. Union of India, 238 a writ petition Under Article 32 has been
filed by way of Public Interest Litigation seeking issue of a writ of mandamus directing the
government to take a steps to stop employment of children in carpet industry in the State of Uttar
Pradesh ; to appoint a Committee to investigate into their conditions of employment , and to
issue such welfare directives as are appropriate for total prohibition on employment of children
below 14 years and directing the respondent to give them facilities like education, health,
sanitation, nutritious food etc.

238
AIR 1984 SC 802
284

Andhra University, Visakhapatnam

 The main contention by the petitioner group is that employment of the children in any
industry or in hazardous industry, is violative of Article 24 of the Constitution and derogatory to
the mandates contained in Article 39(e) and (f) and 45 of the Constitution read with preamble .
Pursuant to the filing of the writ petition the apex court appointed a commissioner to visit
factories, manufacturing carpets and submit their findings as to whether any numbers of children
below the age of 14 years are working in the carpet industry. The commissioner submitted that
their report on 1 august 1991 that violation of Article 24 along with Article 39(e) an (f).

The Apex court observed that child of today cannot develop to be a responsible and
productive member of tomorrow’s society unless an environment which is conducive to his
social and physical health is assured to him. Every, nation, developed and developing link; its
future with the states of the Child. Childhood holds the potential of the society. Children are the
greater gift to the humanity. Mankind has been hold of itself. The parents themselves live for
them. They embody the joy of life in them and in the innocence relieving the fatigue and
drudgery in their struggle of daily life. Parents regain peace and happiness in the company of the
children. The children signify eternal optimism in the human being and always provide and
better equipped with a broader human output, the society will feel happy with them. Neglecting
the children means loss to the society as a whole. If children are deprived of their childhood –
socially , economically , physical and mentally- the nation gets deprived of the potential human
resources for social progress, economic empowerment and peace and order , the social stability
and good citizenry.

The founding fathers of the Constitution, therefore, have bestowed the importance of the
role of the child in its best for development. Dr. Bhim Rao Ambedkar was forehead of his time in
his wisdom projected these rights in the Directive Principle including the children as
beneficiaries. Their deprivation has deleterious effect the efficacy of the democracy and the rule
of law.

Article 39 (e) of the Constitution enjoins that the state shall direct, its policy towards
securing the health and strength of workers, men and women; and the children of tender age will
not be abused; the citizens should not be enforced by economic necessity to enter avocation
unsuited to their age or strength . Article 39(f) enjoins the State shall direct its policy towards

285

Andhra University, Visakhapatnam

securing that children are given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and the childhood and youth are protected against exploitation
and against moral and material abandonment. Article 45 mandates that the State shall endeavour
to promote free and compulsory education for all children until they the complete the age of 14
years. Article 24 of the Constitution prohibits employment of the children in factories, so that no
child below the age of 14 years shall be employed to work in any factory or mine or engaged in
other hazardous employment. Article 21 mandates that no person shall be deprived of his life or
personal liberty except according to the “procedural establishing by law” which this court has
interpreted to mean “due process of law”.

The bane of poverty is the root of the child labour and they are being subjected to
deprivation of their meaningful right to life, food, shelter and medical aid and education .Every
child shall have, without any discrimination on the ground of caste, birth, colour, sex, any wage,
religion, social origin, property or birth alone in the matter of right to health,
wellbeing education and social protection . Article 51-A enjoins that it shall be the duty of every
citizen to develop scientific temper, humanism and the spirit of inquiry and to strive towards
excellence in all spheres of individual and collective activities so that the nation constantly rises
to higher level of endeavour and achievement. Unless facilities and opportunities are provided to
the children, in particular handicapped by social, economical, physical and mental disabilities the
nation stand to lose the human resources and good citizens. Education eradicates illiteracy means
to economic empowerment and opportunity to life to culture. Article 26(1) of the Universal
Declaration of Human Rights assures that everyone has the right to education which shall be
free, at least at the elementary and fundamental stages. Elementary education shall be
compulsory. Technical and professional education shall equally be accessible to all on the basis
of merit. Education enables development for human personality and strengthens the respect for
human rights and fundamental freedoms. It promotes understanding, tolerance and friendship
among people. It is therefore, the duty of the state to provide facilities and opportunities to the
children driven to child labour to develop their personality as responsible citizens.

Due to poverty, citizen and youth are subjected to many visible and invisible sufferings
and disabilities, health, intellectual and social degradation and disposition. The Convention of
the Right 1989 recognizes the right of the child for full and harmonious development of his or
286

Andhra University, Visakhapatnam

her personality. Child should grow up in a family environment, in an atmosphere of happiness,
love and understanding. The child should be fully prepared to live an individual life in the
society. Article 27(1) provides that the State Parties recognize the right of every child to a
standard of living adequate for the child’s physical, mental, spiritual, moral and social
development.

Article 28 (1) State Parties shall promote and encourage international co-operation in
matter, relating to education, in particular with a view to contributing to the elimination
of ignorance and illiteracy throughout the world and facilitating access to scientific and
technical knowledge and modern teaching method in this regard.

Article 28(2) State Parties shall take all appropriate measure to ensure that school
discipline in administered in a manner. Consistent with the child’s human dignity and in
conformity with the Present Convention.

Article 32 (1) says that state parties recognize the right of the child to be protected from
economic exploitation and from performing any work that is likely to be hazardous or to
be interfering with the child’s education, or to be harmful to the child’s health or
physical, mental or spiritual, moral or social development.

Article 32(2) State Parties shall take legislative, administration social and educational
measures to ensure the implementation of the present Article.

The Apex Court gave direction to the Union of India and State Government, their
departments and Authorities keeping in view of the abolition of child labour and looking out the
ratio given in M.C Mehta v. State of Tamil Nadu,239 and follow that step which are laid down in
this case that (1) compulsory education to all children either by the industries itself or in co-
ordination with it by the Government to the children employed in the factories, mine or any other
industry, organized or unorganized labour with such timings and convenient to impart
compulsory education.(2) apart from education, periodical health check up (3) nutritious food (4)
entrust the responsibilities for implementation of the principle.

239
AIR 1991 SC417
287

Andhra University, Visakhapatnam

 240
In People’s Union for Civil Liberties v Union of India and Others, in this case some
children procure for labour subsequently killed or caused to be missing by the Procured. On a
filing Public Interest Litigation by a Non –Governmental Organization the Supreme Court held
that the parents of the children are entitled to compensation and the counsel in support of his
contention relied on Verma J’s observation in Nilabati Behara v. State of Orissa, 241 that a claim
in public law for compensation for contravention of Human Rights and fundamental freedoms,
the protection of which is guaranteed in the Indian Constitution is an acknowledged remedy for
the enforcement and protection of such rights and such a claim based on strict liability made by
resorting to a constitutional remedy provided for the enforcement of Fundamental Rights is
distinct from and in addition to the remedy in private law for tort resulting from contravention of
Fundamental Right. The defence of sovereign immunity being in- applicable and alien to the
concept of guarantee of Fundamental rights, there can be no question of such a defence being
available in the Constitutional remedy. It is this principle which justifies award of monetary
compensation for contravention of Fundamental Rights guaranteed under the Constitution, when
that is the only practicable mode of redress to the contravention made by the state or its servants
in the purported exercise of their powers and enforcement of the Fundamental Right is claimed
by resort to the remedy in public law under the Constitution by recourse to Article 32 and 226 of
the Constitution.

242
In Brown v. Board of Education, it was held that today education is perhaps the most
important function of the state and local governments. It is required in the performance of our
most basic responsibilities, ever service in the armed forces. It is the very foundation of food
citizenship. Today it is a principal instrument in awakening the child to cultural values, in
preparing him for later professional training and in helping him to adjust normally to his
environment. In these days, it is doubtful any child may reasonably be expected to succeed in life
if he is denied the opportunity of an education.

243
In Raj Kumar Tiwari v. State, in this case the petitioner-employer was imposed Rs
20000 as penalty for employing a child alleged to be below the 14 years of age. He challenged

240
(2005) 2 SCC 436
241
(1993) 2SCC746
242
98 Led 873:347 VS 483 (1954)
243
2003II LLJ
288

Andhra University, Visakhapatnam

this order contending that before imposing penalty no enquiry was held. The High Court,
although found that an inquiry was indeed held, set aside this impugned order on the ground that
for the applicability of section 14 of the Act it is sine qua non that the person / child employed
must be one .According to the court the impugned order itself in dictated that the child was set
side.

It is submitted that there is a lot of difference between the expression” a person who has
not completed 14 years of age “and “a person who is 14 years old”. While the former would
mean a person who has completed 14 years of age and is in his 15th year, the latter phrase would
mean a person who has completed 13 years of age and is in his 14th year. In the absence of exact
date of birth to calculate whether the person has completed 14 years of his age, the court could
have upheld the order of the lower court being the fact finding court. It is may seldom that an
employer is punished by the Court for employing a child. And this is a major contributing factor
for the continued employment of children by unscrupulous employers.

In Hemendera Bhai v. State of Chattisgarh, 244 in this case the petitioner facing a criminal
case under Section 482 of the Criminal Procedure Code and Section 14 of the Child Labour
(Prohibition and Regulation) Act, 1986. filed petition under section 482 of Cr.p.c The learned
counsel of the petitioner submitted that the learned magistrate without taking cognizance of the
offence initiated against him criminal proceeding which did not have any reasonable cause and
therefore he pray that the criminal proceeding should be quashed. For supporting his argument
the learned counsel of the petitioner relied on the two decision of the apex court in which
cognizance taken by magistrate has been analyzed.

D. Lakshminarayan’s v. Narayana, 245 in this case the apex court held that the expression
“taking cognizance “is by the magistrate has not been defined in the code. The ways in which
such cognizance can be taken are set out in clause (a), (b) and (c) of the Section 190(1). Whether
the magistrate has or has not taken cognizance of the offence will depend on the circumstances
of the particular case including the mode in which case is sought to be instituted, and the nature
of the preliminary action , if any taken by the magistrate. Broadly speaking, when on receiving a
complaint, the magistrate applies his mind for the purpose of proceeding under Section 200 the

244
2003II LLJ
245
D.Lakshminarayan’s v. Narayana
289

Andhra University, Visakhapatnam

succeeding Sections in Chapter XV of the Code of Criminal Procedure, 1973, he is said to have
taken cognizance of the offence within the meaning of Section 190(1) (a). If instead of
proceeding under chapter IX he , has in the judicial exercise of his discretion, taken action of
some other kind, such as issuing a search warrant for the purpose of investigation , or ordering
investigation by the Police under Section 256 (3) , he cannot said to have taken cognizance of
any offence.

246
In Pepsi Food Ltd and another v. Special Judicial Magistrate and others, the apex
court held that , summoning of an accused in a criminal case is a serious matter. Criminal law
cannot be set into notion as a matter of course is not the complainant has to bring only two
witnesses to support his allegations in the complaint to have the criminal law set in to motion.
The order of the magistrate summoning the accused must reflect that he has applied his mind to
the facts of the case and the law appropriate thereto. He has to examine the nature of allegations
made in the complaint and the evidence both oral and documentary in support thereof and would
not that be sufficient for the complainant to succeed I bringing charge have to the accused. It is
not that the magistrate is a silent spectator at the time of recording of preliminary evidence
before summoning of the evidence before summoning of the accused. The magistrate has to
carefully scrutinize the evidence brought on record and may even himself put questions to the
complainant and his witness to elicit answers to find out the truthfulness of the allegations or to
otherwise and then examine if any offence is prima-facie committed by all or any of the accused.

In the present case, it is clear from the order sheet maintained by the learned magistrate
that he has not applied his mind to the facts of the case and the law appropriate to the present
case. He has not even stated that he had perused, or read the charge sheets, which has to be
treated as a complaint filed by the Inspector under Section 16 of the Act. The apex court had held
that in the aforesaid two judgments that the magistrate has to apply his mind to the facts of the
case and the law applicable to the case, which the learned magistrate has failed to do so in this
case. Thus, he has not taken cognizance against the petitioners and therefore, the criminal
proceedings initiated against the petitioner are liable to be quashed.

246
AIR 1998 SC 128
290

Andhra University, Visakhapatnam

 The next contention raised by the learned counsel of the petitioner is that Section 3 of the
Act is not applicable to the facts and circumstances of the present case and no case under Section
3 of the Act is made out against the petitioner. Section 3 of the Act says that no child shall be
employed or permitted to work in any of the occupations set forth in Part A of the schedule or in
any workshop wherein any processes set forth in part b of the Schedule is carried on.

From the facts of the case and document produced before this court it is submitted that
workers who are supplied raw materials for making Bidis taking the raw materials from the firm
after giving undertaking that they themselves would make Bidis and if they roll Bidis in their
respective houses taking the assistance of their children , the firm cannot be held responsible
since the firm has no control or supervision over the work of those workers who take raw
material to their houses for making Bidis. It is further stated that in the reply that the raw
material was supplied only to those workers whose names are entered in the Register maintained
by the firm. The remuneration is also given only to them. It is not possible for the firm to have
any control or supervision over the Bidi making job being done at the house of workers
according to their convenience. The firm has no knowledge or information as to whether the
workers who make the Bidis at their house take the help of any of their family members or
children in the said job. If they take any such help, the firm cannot be held responsible for the
same. Thus, it cannot be said that the firm is the employer of the child labourer ands Section 3 of
the Act has not been contravened by the firm.

The High Court has given its judgment that petitioner impugned in the petition. Criminal
Proceeding against him pending before the trial magistrate and initiated under Section 482 of the
Code of Criminal Procedure. The High Court allowed the petition quashing the said proceedings
for several reasons. The first was that the trial magistrate has not applied his mind to the facts
and the law applicable to the present case.

Second was that the firm had not employed the child as labourer in any workshop where
its Bidi making was carried on. The workers were supplied raw materials and they rolled Bidis in
their respective houses taking assistance of their children. The firm had no control or supervision
over the work of those workers. There is no document or material to show that the child labour in
question was below 14 years of age.

291

Andhra University, Visakhapatnam

 In Narender Malav v. State of Gujarat, 247 case, a Public Interest Litigation was filed
before the apex court related to the issues of child labour in the salt mines of Gujarat. The court
requested the amicus curiae and a non-governmental organisation, SEWA, to enquire and
investigate the issue of child labour, the welfare and well being of salt mine workers and their
families in the Saurashtra and Kutch areas of the State of Gujarat, particularly with reference to
education facilities for their children and availability of a adequate /proper housing and medical
facilities and to report to the court within three months.

The court requested the amicus curiae and the representative of the Non –Governmental
Organisation to interact with the empowered committee for the purpose of ascertaining the
measures taken by various agencies for the welfare of salt workers and their families and to
suggest ways and means to improve these conditions. The court directed the state government
through the Assistant Labour Commissioner to provide all the assistance for this purpose.

In Anant Construction Co v. Govt Labour Officer and Inspector, 248 in this case question
is whether the Inspector appointed as per Section 17 of the Child Labour (Prohibition and
Regulation) Act, 1986 have the power to pass an order holding that the labour employed by the
appellant were below the age –limit prescribed under the Act and to also direct the appellant to
pay compensation.

The appellant was carrying a construction business in 1997. The Inspector being
Respondent (1) here in , visited the construction site of the appellant and issued a notice to the
appellant asking for explanation within seven days with regard , to the employment of child
labour(three persons to be exact ) on the construction site. The appellant relied upon two
certificates certifying that child labourers were in fact about the age of 14 years when the labour
was employed. The inspector demanded the appellant to have a deposit of Rs. 20000 per child as
compensation and if he failed then action will be taken against him.

Aggrieving with this order, the appellant filed before the High Court as writ petition
under Article 226 of the Constitution. In his writ petition the appellant had submitted that the
inspector did not have jurisdiction to decide the dispute related to the age factor of the child but

247
Writ Petition (civil) 9 of 2001.
248
(2006) 9SCC 225
292

Andhra University, Visakhapatnam

was bound to refer the dispute for decision to the prescribed medical authority as per Section 10
of the Act. The High Court did not agree with the contention raised by the appellant and
dismissed the petition and upheld the quantum of penalty.

Finally the appellant appeal to this court and the apex court has observed Section 16(2) of
the Act which prescribes the procedures related to the offence. Procedure related to Offence-
section 16(1) any person; police officer or inspector may file a complaint of the commission of
an offence under this Act in any court of competent jurisdiction. Section 16(2) Every certificate
as to the age of a child which has been granted by a prescribed medical authority shall, for the
purposes of this Act, be conclusive evidence as to the age of the child to whom it relates. Section
16(3) No court to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any
offences under this Act.

Therefore under this section jurisdiction of the Inspector to file a complaint with regard to
any offence under the Act does not extend to the trying of the complaint which as sub-section (3)
of the Section 16 specifically provides only court not inferior to the Metropolitan Magistrate or a
Magistrate of the first class.

Besides, Section 16(2) does not make the production of certificate mandatory. In fact it is
open to persons proceeded against under the Act to raise a dispute as to the age of the person
employ. Dispute as to age –If any question arises between an Inspector and an occupier as to the
age of any child who is employed or is permitted to work by him in an establishment, the
question shall in the absence of a certificate as to the age of such a child granted by the
prescribed medical authority, be referred by the inspector for decision to the prescribed medical
authority.

Rule 17 of the Child Labour (Prohibition and Regulation) Rules, 1988 relied on by the
respondents not doubt provides that: Certificate of age-(1) all young persons in employments in
any of the occupations set forth in Part A of the Schedule or in any workshop where in any of the
processes set forth in Part B of the Schedule is carried on, shall produce a certificate of age from
the appropriate medical authority, whenever required to do so by an inspector.

293

Andhra University, Visakhapatnam

 Rule 17(1) deal with the obligation on the part of young persons to produce the certificate
of age from the appropriate medical authority and does not pertain to the obligation of the
employer. If the employer may, on reasonable material, raise a dispute before the Inspector
regarding a child’s age, the Inspector can only refer the dispute to the prescribed medical
authority under Section 10 of the Act. Therefore, the impugned order of the Inspector being
without jurisdiction, his order and the order of the High Court are set aside and the appeal is
allowed. The appellant set free at liberty without any cost.

249
In R.D. Upadhay v. State of Andhra Pradesh and Others, Chief Justice of India Y.K
Sabharwal, observed that Article 45 of our Constitution stipulates that the State shall endeavour
to provide early childhood care and education for all children until they complete the age of six
years. In this case, the Apex Court also laid down a guidelines for the education and recreation
for children of female prisoners like

(a) The child of female prisoners living in the jails shall be given proper education and
recreational opportunities and while their mother are at work in crèches, under the charge
of a matron / female warder. This facility will also be extended to children of warders and
other female prison staff.

(b) There shall be a crèche and a nursery attached to the prison for women where the
children of woman prisoners will be looked after. Children below the age of three years
shall be allowed in crèche and those between three and six years shall be looked after in
the nursery.

The prison authorities shall preferably run the said crèche and nursery the prison
premises. So Child labour is a big problem and has remained intractable, even after about 50
years of our having become independent, despite various legislative enactments, to which we
shall refer in detail subsequently, prohibiting employment of a child in a number of occupations
and avocations. Some decisions relating to child labour

249
R.D Upadhay v. State of Andhra Pradesh and Others
294

Andhra University, Visakhapatnam

 Bachpan Bachao Andolan v. Union of India & Ors.250 is a case where a petition has been
filed in public interest under Article 32 of the Constitution in the wake of serious violations and
abuse of children who are forcefully detained in circuses, in many instances, without any access
to their families under extreme inhuman conditions. There are instances of sexual abuse on a
daily basis, physical abuse as well as emotional abuse. The children are deprived of basic human
needs of food and water.

It is stated in the petition that the petitioner has filed this petition following a series of
incidents where the petitioner came in contact with many children who were trafficked into
performing in circuses. The petitioner found that circus is one of the ancient forms of indigenous
entertainment in the world, with humans having a major role to play. However, the activities that
are undertaken in these circuses deprive the artists especially children of their basic fundamental
rights. Most of them are trafficked from some poverty-stricken areas of Nepal as well as from
backward districts of India. The outside world has no meaning for them. There is no life beyond
the circus campus. Once they enter into the circuses, they are confined to the circus arena, with
no freedom of mobility and choice. They are entrapped into the world of circuses for the rest of
their lives, leading a vagrant tunnelled existence away from the hub of society, which is
tiresome, claustrophobic and dependent on vicissitudes.

It is submitted that the petitioner is engaged in a social movement for the emancipation of
children in exploitative labour, bondage and servitude. Bachpan Bachao Andolan has been able
to liberate thousands of children with the help of the judiciary and the executive as well as
through persuasion, social mobilization and education.

There is no labour or any welfare laws, which protect the rights of these children.
Children are frequently physically, emotionally and sexually abused in these places. The most
appalling aspect is that there is no direct legislation, which is vested with powers to deal with the
problems of the children who are trafficked into these circuses. The Police, Labour Department
or any other State Agency is not prepared to deal with the issue of trafficking of girls from Nepal
holding them in bondage and unlawful confinement. There is perpetual sexual harassment,

250
The Supreme Court of India 2011 Civil Original Jurisdiction Writ Petition (c) no.51 of 2006
295

Andhra University, Visakhapatnam

violation of the Juvenile Justice Act and all International treaties and Conventions related to
Human Rights and Child Rights where India is a signatory.

The petitioner submitted that this Court in the case of N.R. Nair & Others v. Union
of India & Others,251 upheld the rights of animals who are being made to perform in these
circuses after understanding their plight. The situation of children in circuses is no different if not
worse.

The petitioner has made various attempts to regulate and improve the conditions of
children in circuses including engaging the circus owners association. However, none of them
have derived good results. It is categorically submitted that the petitioner does not want the
circuses to be completely banned or prohibited but there is a strong need to regulate this as any
other industry including ensuring safety and other welfare measures of all those who are working
in circuses, particularly the children. Almost all the circuses employ at least 50 persons and
therefore a large number of labour laws should be applied.

Most of the child artists complain i) of insufficient space and lack of personal space and
privacy. ii) two meals - lunch and dinner to the artists and tea also two times from the canteen
run by the management. The quantity and quality of the food is variable, depending on the
management. Most often, the food is inadequate to satisfy the appetite of young growing
children. iii) Sleep Timings Sleep timings are also very erratic, depending upon the nature of the
work being performed by the child artists, though on a general trend most go to bed at midnight
after the last show is over, to be woken up at dawn for practise. iv) Poor Sanitation -There are no
proper toilets and bathrooms. Make-shift toilets are created on the circus ground near the tents
and all the company girls have to share it and the stench around them is unbearable. In general,
condition of sanitation in circuses is most pathetic. It also precipitates unhygienic conditions that
could lead to diseases. Invariably all the artists voiced their dissatisfaction on the issue of
sanitation and hygiene. v) No Health Care Personnel- Overall, it can be said that the living
conditions inside the premises of the circus arena are squalid and deplorable, with no facilities
and basic amenities being provided to the circus artists, not even proper sanitation.vi) High Risk
Factor - especially those who were involved in items like ring of death, well of death, sword
251
(2001) 6 SCC 84
296

Andhra University, Visakhapatnam

items, rope dance etc. vii) Remuneration-. Salary accounts are often manipulated and the loss
due to accidents or mishaps is not compensated.

In Hemendra Bhai v. State Of Chhattisgarh,252 it was held that if the child labourer is
employed in the firm of the applicant without inspecting the premises of the firm, it is not
possible to hold that the applicant has employed child labourer. The case relates to scheme of
supplying raw material to the worker employed by the firm for making Bidis at his house where
he makes Bidis at his convenience and thereafter handing over the same to the firm. If the worker
employed by the firm takes the help of anybody at his home for making Bidis, there is no
supervision or control of the firm over such persons or job nor such persons can be said to be
employees of the firm the Act is not applicable to a case

253
In M.C. Mehta v. State of Tamil Nadu and Others, Sivakasi was one taken as the
worst offender in the matter of violating prohibition of employing child labour. As the situation
thee had became intolerable, the public spirited lawyer, Shri MC Mehta, thought it necessary to
invoke this court's power under Article 32, as after all the fundamental right of the children
guaranteed.

A National Commission for Children's Welfare should be set up to prepare a scheme

for child labour abolition in a phased manner. Such a Commission should be answerable to this
Hon'ble Court directly and should report to this Hon'ble Court at periodical intervals about the
progress. We put on record our appreciation for the commendable work done by the committee.
There is an affidavit of the president of the All India Chamber of Match Industries, Sivakasi, on
record which contains its reaction to the recommendations of Committee. It is not necessary to
deal with this affidavit. Objection to the Committee's recommendations was also filed by the
President of Tamilnadu Fireworks and Amorces.

254
In Mahesh Kumar Garg and ors. v. State of U.P, the Hon'ble Supreme Court while
considering the plight of the child labourer and the causes of such vast magnitude of such
exploitation laid down that a Child Labour Rehabilitation-cum-Welfare Fund should be created

252
Chattisgarh High Court 2003 (97) FLR 402, (2003) IILLJ 645 C
253
Supreme Court of India 1996
254
Allahabad High Court 2000
297

Andhra University, Visakhapatnam

district wise or area wise. Every offending employer shall deposit Rs. 20,000/- per child in the
said fund. The funds so generated shall form corpus whose income shall be used for
the child concerned. The quantum could be the income earned, deposited to qua the child. To
generate greater income, fund can be deposited in high-yielding scheme of any nationalised bank
or other public body. Multiple directions were issued to the States

In Court on Its Own Motion v. State of Punjab,255 there was hardly any implementation of
the various provisions for process of rehabilitation and social reintegration, which include
adoption, after-care, sponsorship, etc. Thereafter, this petition was taken up along. In writ
petitions, various aspects were highlighted. While these issues were taken care of and various
orders passed from time to time another Public Interest Litigation Petition to be filed. In this
petition, the issue pertaining to Child Labour has been raised stating that many children below
the age of 14 years have been found working in various places including Punjab University,
Chandigarh which is against the provisions of Child Labour (Prohibition and Regulation) Act,
1986. (here after referred to as 'the Act of 1986') However, the grievance is that the authorities
have not been taking any action. On this basis, prayer made in this petition is to the effect that
children below 18 years, which is a legal age of contract, are not made to work and a mechanism
be ensured where providing for compulsory registration of Children Homes under the Act. All
these writ petitions were clubbed together at one stage. Replies from the respondents were
elicited.

256
Bhagwandas Harprasad v. State of M.P. and Anr, and M.C. Mehta v. State of Tamil
257
Nadu and Ors. they have now approached this Court seeking redress praying for quashing of
the aforesaid orders. The Hon'ble Apex Court in its decision in the case of M.C. Mehta v. State of
258
Tamil Nadu, reported in, finding that the problem of child labour in India has spread its fang
far and wide and it had by now assumed the shape of an all India evil, holding that the offending
employer must be asked to pay compensation for every child employed in contravention of the
provisions of the Act a sum of Rs. 20,000/-; had issued a direction that the Inspectors, whose

255
Punjab‐Haryana High Court 2013 at Chandigarh
256
Madhya Pradesh High Court 1998
257
AIR 1997 SC 699,
258
ibid
298

Andhra University, Visakhapatnam

appointment is visualised of Child Labour (Prohibition and Regulation) Act, 1986, in order to
secure compliance of the provisions of the Act, should do this job.

The Hon'ble Supreme Court in its decision in the aforesaid case issued various directions
requiring the concerned States to follow them. Under one of the directions issued, the State
Government was required to make a survey of the offending employers of the child labour,
which was to be completed within six months from the date of the judgment. It was directed that
it would be the duty of the Inspectors to see that the call of the Constitution, as clarified in the
decision, was carried out providing that a district could be the unit of collection so that the
executive head of the district keeps a watchful eye on the work of the Inspectors. The Apex
Court observed that on the directions given by it being carried out penal provisions.

In Union of India, Rep. by v. For,259-It is well known that concentration of

child labourers in Match Factories and Fire Work, the trend of child labour had decreased over
the past two decades as per census data and SSA date on out of school children. ILO, TPEC
programme on child labour was operated from 2000 2003. After the withdrawal of IPEC
programme dated in the name of NCLP project continued, followed by that, the project was run
as INDUS till 2007. After, the project is again converted into NCLP. Indus project was initiated
in the District, and 83 special schools were functioning.

In Kanagavalli and 4 Others v. Saroja and 3 Others, 260 The Madras HC held that "The
Committee is concerned that India has not yet established a comprehensive and compulsory
system of registration of births and marriages. The Committee notes that inability to prove those
important events by documentation prevents effective implementation of laws that protect
women and girls from sexual exploitation and trafficking, child labour and forced or early
marriage. The Committee is also concerned that failure to register marriages may also prejudice
the inheritance rights of women."

259
Madras High Court Union of India, 2011
260
AIR 2002 Mad 73
299

Andhra University, Visakhapatnam

Public Interest Litigation (PIL)

The timeless issue of the role of judiciary has recently been the subject of much
discussion in the developing world. The growing awareness of the need for human rights
protection has focused the limelight squarely on the judiciary. Judges are increasingly
finding it difficult to hide behind the doctrines of judicial self-retraint and ‘passive’
interpretation. Their judgements in the area of fundamental rights are scrutinized by a
growing international audience interested in the need to implement social justice. The
prestige and legitimacy of the judiciary is being constantly called into question as an
increasing number of citizens and citizens group bring their grievance directly to the portals
of the Supreme Court.

The human rights movement has in many ways made the judiciary a most dynamic
and important government institution. Standing between individual citizens and the wielders
of power, the judiciary has become the ultimate arbiter in the area of democratic politics.
The sudden thrust on to the center stage has made judging a difficult and complex exercise,
especially, in the developing world. The Court often finds that it has moral responsibility
without the necessary safeguards of institution at integrity. Nevertheless, a growing number
of judges are gradually beginning to realize that there is really no escape from the
increasing responsibility and that the time may be ripen to develop a fresh, innovative and
principled approach to the role that the judiciary can play in a changing society.

One important aspect of the methodology of judging, which tests the creativity of
Supreme Court judges is in the formulation of Constitutional remedies which effectively
meet the issue of controversy before the court. It is this aspect in the final result which will
determine whether a strong judgement of the court is empty rhetoric. Increasingly
Constitutional remedies are constructed in terms of on-going judicial review as to whether
the State is implementing the decision of the court. In the United States this has resulted in
large scale i.e., judicial intervention in the disagregation policies of State schools. As one of
judiciary’s special roles is to ensure the effective implementation of government policy in
the case of individual citizens, the necessary corollary is that it devices the mechanisms to

300

Andhra University, Visakhapatnam

ensure that such implementation is taking place. And yet, the mechanisms should into
result in the judiciary acquiring a corrective executive role.

Labour Jurisprudence and PIL

Judiciary has dealt many cases relating to Labour Jurisprudence.

261
In Fertilizer Corporation Kamgar Union v. Union of India, a Constitutional Bench
of the court recognized the 'locus-standi' of worker to challenge the legality of sale of certain
plants of Sindri Fertilizer Factory. The Court established the principle that decision taken by
the management affecting their rights directly, the workers of a factory have the 'locus-standi'
262
to challenge major decision of management. In P.U.R v. Union of India, the Court
treated a letter written by petitioner organization as public interest litigation. The Court
declared that right to minimum wages is a fundamental right of workers under Article 21 of
the Constitution.

In Bandhua Mukti Morcha v. Union of India,263 the three Judges bench of the court
entertained a petition filed by an organization dedicated to the cause of release of bonded
labourers from Maharastra, Madhya Pradesh, Uttar Pradesh and Rajasthan working in
inhuman and intolerable condition in stone quarries situated in Faridadad and some of them
were bonded labourers. The Court issued a number of directions to Central and State
Governments to free the bonded labourers. In Shiela Barse v. Union of India,264 the Court
issued the direction to lockup female prisoners only in female lockups guarded by female
constables and to interrogate female accused only in the presence of female officials. In
Gaurav Jain v. Union of India,265 the Supreme Court took cognizance of the problem of the
children born to prostitutes and constituted a committee of lawyers and social activities to
look into the matter. The Court also issued number of directions for the rescue and
rehabilitation of child prostitute and established Juvenile Homes for them.

261
AIR 1981 SC 344
262
AIR 1982 SC 1473
263
AIR 1984 SC 802
264
AIR 1983 SC 378
265
AIR 1990 SC 292
301

Andhra University, Visakhapatnam

 In Visahakha v. State of Rajasthan,266 the Court issued number of guidelines and
norms to protect and to enforce the fundamental and human rights of working women against
the sexual harassment.

In Lakshmi Kant Pandey v. Union of India,267 the Supreme Court laid down various
principles and norms which should be followed in determining whether child should be
allowed to be adopted by the foreign parents.

Judiciary and Child Protection

The Supreme Court of India, as stated has been assigned an important role, as a
guardian of the Constitution and protector and guarantor of Fundamental rights.

Our Constitution accords a dignified position to the judiciary. It is the greatest

unifying and integrating force of our country. The Supreme Court is at the apex the well-
oriented and well-regulated judicial structure of the country. It expounds and defines' the true
meaning of law. It is the ultimate interpreter of the Constitution and this puts a second brake
on the legislature and the executive, the first being the political check of the people
themselves.6 The Constitution puts an obligation on every organ of the State, including the
judiciary, to ashlar in a new social order in which justice-social, economic, political and
equality of status and opportunity prevail. The final burden of interpreting these provisions is
upon the courts. Courts are to contribute to law's growth without overstepping the boundaries
of the system, in other words, how to reconcile tradition and convenience or the claims of
stability and those of change. It is the duty of the judiciary to recognize the development of
the nation and to apply established principles of the positions which the nation in its
progress from time to time assumes.

The Judicial organ would otherwise separate itself from the progressive life of
community and act as a clog upon the legislative and executive departments rather than
as an interpreter. Indian Judiciary is charged with the duty of holding the balance even,
between a state or states and the union and between the state and the citizen, and sometimes
between the state and the individual. It has to hold the scales even in the legal combat
266
AIR 1997 SCC 241
267
AIR 1992 SC 118
302

Andhra University, Visakhapatnam

between the rich and the poor, the mighty and the weak without fear or favour. The role of
Judiciary in India been quite significant in promoting the child welfare. Mr. Justice Suba Rao,
the former Chief Justice of India, rightly remarked:

"Social Justice must begin with child unless tender plant in properly nourished, it has
little of growing into strong and useful tree. So, first priority in the scale of social justice should
be given to the welfare of children".

It is in this spirit that the apex Court has laid emphasis on the fact that the important
task of social justice is to take care of child for future of the nation.

Child Labour and the Philosophy of Locus standi

The traditional syntax of law in regard to locus-standi for a specific judicial redress,
sought by an identifiable person or determine class or identifiable group of persons, is
available only to that person or class or group of persons who has or have suffered a legal
injury by reasons of violations of his or their legal right or a right legally protected, the
invasion of which gives rise to action ability within the categories of law. In a private
action, the litigation is bipolar, two opposite parties are locked in a confrontational
controversy which pertains to the determination of the legal consequences of past events
unlike the public action. The character of such litigation essentially that of vindicating private
rights, proceedings being brought by the persons in whom the right personally inhere or their
legally constituted representatives who are thus obviously most competent to commence
the litigation.

In contrast, the strict rule of locus-standi applicable to private litigation is relaxed

and broad rule is evolved which gives the right of locus-standi to any member of the public
acting bonafide and having sufficient interest in instituting an action for redressal of public
wrong or public injury, but who is not a mere busy body of meddlesome interloper. The
dominant object of PIL is to ensure observance of the provisions of the Constitution or
the law which can be best achieved to advance the cause of community or disadvantaged
groups and individuals or public interest by permitting any person, having no personal gain
or private motivation or any other oblique consideration but acting bonafide and having

303

Andhra University, Visakhapatnam

sufficient interest in maintaining an action for judicial redress for public injury to put the
judicial machinery in motion like action popularis of Roman law whereby any citizen could
bring such an action in respect of public delict.

Though in our country, courts have recognized a departure from the strict rule of locus-
standi as applicable to a person in private action and broadened and liberalized the rule of
standing and thereby permitted a member of the public, having no personal gain or oblique
motive to approach the Court for enforcement of the Constitutional or legal rights of socially
or economically disadvantaged persons who on account of their poverty or total ignorance of
their fundamental rights are unable to enter the portals of the Courts for judicial redress. As
yet no precise and inflexible working definition has been evolved in respect of locus-standi
of an individual seeking judicial remedy in the field of PIL. Truly, in-defining the role of locus-
standi, no rigid litmus test can be applied since the broad contours of PIL, are still developing
apace seemingly with divergent views on several aspects of the concept of this philosophy.

The liberalization of the concept of locus-standi to make access to the Court easy is an
example of changing attitude of the courts. It is generally seen that all the working children
are from the families which are below the poverty line having no means to ventilate their
grievance regarding infringement of their fundamental rights. Keeping in view the
pitiable conditions of the child workers, the apex Court has shown its generosity by relaxing
the concept of locus-standi. The Court has shown its wisdom by injecting the philosophy of
public interest litigation. The judiciary is intended to vindicate and promote public interest by
rendering help to those people of the society who are unable to approach the Court because of
their poor-economic conditions.

This issue of locus-standi has arisen in number of cases before the Supreme Court.
The Supreme Court has very daringly held in a case: "Where a legal wrong or a legal
injury is caused to a person or to a determinate class of persons by reason of violation of any
Constitutional or legal right or any burden is imposed in contravention of any Constitutional or
legal provisions or without authority of law or any such legal wrong or legal injury or illegal
burden is threatened, and such person or determinate class of persons is by reason of poverty,
helplessness or disability or socially or economically disadvantaged position, unable to

304

Andhra University, Visakhapatnam

approach the court for relief, any member of the public can maintain an application for an
appropriate direction or writ or order".

Similarly Krishna Iyer, J., in Fertilizer Corporation Kamgar Union v. Union of India,268
also stated: In simple term locus standi must be liberalized to meet the challenge of time. The
liberalized rule of locus standi has further been reflected in various Supreme Court's
decisions including Ratlam Municipality Case,269 K.R. Shenoy v. Udipi Municipality,270 Ram
Kumar Mishra v. State of Bihar,271 and Bandhua Mukti Morcha v. Union of India.272

Keeping in mind the recent development of the doctrine of PIL, and the judicial
exposition of the rule governing locus-standi, Supreme Court should revert to the facts and
examine each case brought before it and determine (1) whether the petitioner has locus-
standi to this litigation, and (2) whether this litigation will fall within the ambit and scope of
PIL seeking declaratory as well as injunctive reliefs. Indeed, the true public interest
litigation is one in which a selfless citizen having no personal motive or any kind except
either, compassion for the weak and disabled or deep concern for stopping serious public
injury, approaches the Court either for (i) enforcement of fundamental right of those
who genuinely do not have adequate means of access to the judicial system or denied benefit
of the statutory provisions incorporated in the directive principles of state policy for
amelioration of their condition or (ii) preventing or annulling executive acts and
omissions violative of Constitution or law resulting in substantial injury to public
interest. The newly developed law and discovered jurisdiction leading to a rapid
transformation of judicial activism with a far reaching change is the nature and form of the
judicial process.

So it is quite clear that the Court has widely enlarged the scope of PIL relaxing and
liberalizing the rule of standing by treating letters or petitions sent by any person or
association complaining violation of any fundamental rights and also entertaining
writ petitions filed under Article 32 of the Constitution by public spirited and policy

268
AIR1981 SC 468
269
AIR 1980 SC1622
270
AIR 1974 SC 2177
271
AIR 1884 SC 537
272
AIR 1984 SC 804
305

Andhra University, Visakhapatnam

oriented activist person or journalists or of any organization rejecting serous petitions. It
has rendered many effective pronouncements and issued manifold directions of the
Central and State Governments, all local and other authorities within the territory of India or
under the control of the Government of India for the betterment of the public at large in
many fields in conformity with the Constitutional prescriptions. The newly invented
proposition of law laid down by many learned judges of Supreme Court in the arena
of PIL, irrefutably and manifestly establish that our dynamic activism in the field of PIL is
by no means less than those of other activist judicial system in other part of the world.
Recently in Jantadal v. H. Choudhury, it has been held that Supreme Court in defining the rule
of locus-standi has not applied any rigid litmus test as the law is still developing.

As regards to the welfare of child labour the Court opined that Compulsory Insurance
Scheme should be provided for both adult and child employees taking into consideration
the hazardous nature of employment. It may therefore be summed up here that judiciary has
always worked hard to discourage the practice of traffic in human beings and forced labour.
The Courts in India are always quite sensitive to the problems of child workers who are oftenly
made victim by their mighty employers. The judiciary has always fought for the cause of
child workers with zeal to raise them to higher level of achievement and bring about their total
advancement and welfare so that they are converted into good citizen of the country.

The Courts have always interpreted and applied the law as to promote the cause of
justice and to meet the hope and aspiration of the children as per the mandates of the
Constitution. The concern of the courts for the under privileged poor section of the society is
aptly reflected in Bihar Legal Support v. The Chief Justice of India and others,273 thus the
foregoing paragraphs disclose that judiciary has always given a lead to save the child workers
from exploitation and improve their working conditions. Judicial mandate clearly demonstrate
that right to education is necessary for the proper flowering of children.

Further the judiciary has shown a generosity towards poor child workers by relaxing the
rules of locus-standi. It has always made efforts to benefit the poor child workers by
entertaining their problem and giving relief to them despite the limitations of locus standi. The

273
1986 4 SCC 767
306

Andhra University, Visakhapatnam

observations made by the judiciary in various decided cases show that it is always committed to
the causes of the child workers. The judiciary has always made concrete efforts to safeguard
them against the exploitative tendencies of their employers 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 consonance of the mandate of our Constitution.

Dispute as Regards Age of Child Labour Procedure to be Adopted

In Anant Construction Company v. Govt. Labour Officer and Inspector.274 the two
legal issues that camp up for the consideration of the Supreme Court were whether the
inspector appointed under the child Labour (Prohibition and Regulation) Act, 1986 had the
power to pass an order holding that the labour employed by the appellant were the age of
14 as prescribed under the Act and whether he was competent to direct the appellant to pay
compensation. The appellant was engaged in construction business. On an inspection visit to
the construction site the respondent spotted three child labour being employed and issued
notice to the appellant. Although the Appellant produced two birth certificates, one issued by
the Sarpanch of the village Panchayat and the other by the Medical Officer, PHC Palem
certifying that the child labour were above 14 years of age, the inspector not being convinced of
the age as certified, directed the appellant to deposit Rs. 20,000 per child with the Child
Labour Rehabilitation and Welfare Fund in keeping with the decision in M.C. Mehta v. State of
Tamil Nadu.275

In a writ petition before the High Court the petitioner submitted that the inspector
had no power /legal authority to decide the dispute regarding age of the child labour himself
as he was bound to refer it for decision to the prescribed Medical authority under section 10
of the Act. The Court, however, did not agree with the contention of the appellant and
dismissed the writ petition holding that the certificates produced by the appellant were
unreliable. It did not interfere with the penalty ordered by the inspector.

274
(2006)9 Supreme Court Cases, 225
275
(1996) 6 SCC 757.
307

Andhra University, Visakhapatnam

 The Supreme Court as analysis of Sections 10 and 16 of the Act, which speak about
dispute as to age and procedure to be followed relating to offences, respectively, allowed the
appeal. The court held that when the appellant employer produced certificates of age, the
inspector was bound to refer the matter under Section 10 of the Act to the prescribed Medical
authority. He was neither competent to decide the issue nor was he entitled to hold that in
the absence of certificate of age, his own survey report would stand. The Court further held
that the jurisdiction of inspector under section 16(2) to file a complaint did not extend to
trying of the said complaint himself, which only courts, not inferior to the metropolitan
Magistrate or a Magistrate of the first class, are competent to try. Moreover, he had no
jurisdiction to impose fine, which was contrary to Section 16(3) of the Act. The court had no
hesitation in setting aside the impugned order of the inspector being without jurisdiction and
also the order of the High Court upholding the order of the inspector. It is submitted that the
court has rightly delineated on the powers of the inspector and the limitations thereon under
the Act.

In Ajay Goswami v. Union of India, 276 the petitioner's grievance was that the
freedom of speech and expression enjoyed by the newspaper industry was not in balance
with the protection of children from harmful and disturbing materials. That though the
press is free to express its ideas, at the same time, individuals also have a right to their own
space and the right not to be exposed against their will to other's expressions of ideas and
actions.

By way of this petition, the petitioner requested the Court to direct the authorities to
strike a reasonable balance between the fundamental right of freedom of speech and
expression enjoyed by the press and the duty of the Government, being signatory to the
United Nations convention on the Rights of the child, 1989 and the Universal Declaration of
Human Rights, to protect vulnerable minors from abuse, exploitation and harmful effects of
such expression. The petitioner requested the Court to direct the authorities concerned to
provide for classification or introduction of a regulatory system for facilitating climate of
reciprocal tolerance which could include:

276
(2007) 1 Supreme Court cases 143
308

Andhra University, Visakhapatnam

 (a) An acceptance of other people's rights to express and receive certain ideas and
actions; and
(b) Accepting that other people have the right not to be exposed against their will to
one's expression of ideas and actions.

The reciprocal tolerance was further necessary considering the growing tendency
amongst youngster and minors of indulging in X-rated jokes, SMSs and MMSs. Nudity
in photographs, discussions on Sex matters, double meanings, etc. titillate and confuse young
minds.

The lawyer petitioner who appeared in person submitted that he had filed this
petition to seek protection from the Supreme Court to ensure that minors were not exposed
to sexually exploitative Materials, whether or not the same were absence or were within the
law. The real objective was that the nature and extent of the Materials having sexual content
should not be exposed to minors indiscriminately and without regard to the age of the minor.
The discretion in this regard should rest with the parents, guardian, teachers or experts on sex
education.

The petitioner was not in any way seeking restraint on the freedom of press or any
censorship prior to the publication of article or other material. The Petitioner was only
seeking for regulation at the receiving end and knot at the source.

The Supreme Court in the present matter dismissed the writ petition and held that
the petitioner had failed to establish his case clearly. The petitioner only stated that the new
items that are published by Respondents "leave much for the thought of minors". The Court
further held that fertile imagination of anybody, especially of minors should not be a matter
that should be agitated in the court of law. The court also observed that the request made by
the press council of India to amend some provisions should be seriously looked into by
the government of-India and appropriate amendments be made in Public interest.

309

Andhra University, Visakhapatnam

Prohibition of Traffic in Human Beings and Forced Labour

As regards the true scope and meaning of traffic in human beings and other forms of
forced labour, the court has specifically pointed out that Article 23 of the Constitution has been
intended to protect the individual not only against the state but also against other private citizens.
It prohibits traffic in human beings and beggars and other similar forms of forced labour
practiced by anyone else. Elaborating the point, Bhagwati, J. Observed: “Article 23 strikes at
forced labour in whatever form it may manifest itself, because it is violative of human dignity
and is contrary to basic human values”.

The Supreme Court has rightly reminded us of the task undertaken by our wise founding
fathers of the constitutions under Art. 23 of our National Chapter. The Court observed: “The
Constitution-makers, when they set out to frame the constitution found that they had the
enormous task before them, of changing the socio-economic regeneration with a view of
reaching social and economic justice to the common mass. Large masses of people, bled white
by well-nigh two centuries of foreign rule were living in object poverty and destitution, with
ignorance and illiteracy accentuating their helplessness and despair. The society had degenerated
into a status-oriented hierarchical society with little respect of dignity of the individual who was
in the lower strata of the social ladder or in an economically impoverished condition. The
political revolution was completed and it is succeeded in bringing freedom to the Country, but
freedom was not on an end in itself, it was only a means to an end.

The end being, raising of the people of higher level achievement and bringing about their
total advancement and welfare. Political freedom had no meaning, unless it was accompanied by
social and economic freedom and it was, therefore necessary to carry forward the social and
economic evolution with a view to creating socio-economic conditions in which everyone would
be able to enjoy basic human rights and participate in the fruits of freedom and liberty in an
egalitarian social and economic framework. It was with this end in view that the constitution-
makers enacted the Directive Principles of State Policy in Part-IV of the Constitution setting out
the Constitutional goal of a new socio-economic order. Now there was one feature of our
National life which was ugly and shameful and which cried out urgent attention and that was the
existence of bonded or forced labour in large part of the country. This evil was the relic of a

310

Andhra University, Visakhapatnam

feudal exploitative society and it was totally incompatible with the new egalitaration socio-
economic order, which “we the people of India” were determined to build and constitute a gross
and most revolting, denial of basic human dignity. This was, therefore, necessary to eradicate the
pernicious practice and wipe it out altogether from the national scene and this had to be done
immediately because which the advent of freedom, such practice could not be allowed to light
the national life any longer. Obviously, it would not have been enough merely to include
abolition forced labour in the Directive Principles of the State Policy because then the outlawing
of this practice would not have been legally enforceable and it would have continued to plague
our national life in violation of basic Constitutional norms and value until some appropriate
legislation could be brought by the legislature forbidding such practice.

The Constitution-makers, therefore decided to give teeth to their resolve to obliterate and
wipe out this evil practice by enacting constitutional prohibition, against it, in the chapter on
Fundamental Rights, so that the abolition of such practice may become enforceable and effective
in Article 23 was included in the chapter of fundamental rights. The prohibition against “traffic
in human being and beggar and other similar forms of forced labour,” is clearly intended to be a
general prohibition, total in its effect and all pervasive in its range and it is enforceable not only
against state but also against any other person including in any such practice.

277
Similarly, in Lakshmi Kant v. Union of India, the Court took active steps to abolish
bonded domestic service and slavery of poor children which had been in practice under the guise
of foreign exploitation. But violation of various protective provisions have been pertinently
pointed out by the highest judicial tribunal in the Country. Such violation related to the
provisions of the Minimum Wages Act, 1948, and the Inter-state Migrant Workmen (Regulation
of Employment and Conditions of Service) Act, 1979, the Supreme Court has issued directions
to safeguard the interests of large number of child workers in Salal Hydro Project v. Jammu &
Kashmir.

Despite judicial activism, there still are many cases where the acute poverty has
compelled the parents to sell their children hoping that the children would be engaged only in
household duties. But there are persons, who purchase female children for the purpose of forcing

277
AIR 1984 SC 469
311

Andhra University, Visakhapatnam

them into brothel they are brutally treated, until they succumb to the desire of the brothels,
keepers and enter into a unethical and squalid business of prostitution. Some such cases were
278
brought to the notice of the Supreme Court in Vishal Jeet v. Union of India, The Supreme
Court referred to Article 23 of the Constitution which prohibits traffic in human beings and
Clause (e) of Article 39, which inter-alia, provides that the tender age of children is not abused
and the citizens are not forced by economic necessity to enter into work unsuited to their age or
strength. The Supreme Court also referred to Clause (f) of Article 39, which, inter-alia, provides
that childhood and youth are protected against exploitation and against moral and mental
abandonment. These provisions show that the framers of the Constitution were anxious to protect
and safeguard the welfare of children.

In People Union for Democratic Right v. Union of India,279 the Supreme Court
considered the meaning and scope of the phrase “hazardous employment”. In this case inter alia,
the question before the Supreme Court was that whether the employment of children in the
construction work amounts to employments in hazardous concerns and whether it violated the
Employment of Children Act, 1938. The Union of India, the Delhi Administration and the Delhi
Development Authority contended that this act is not applicable in case of employment in the
construction work since construction industry is not a process specified in the Schedule and is,
therefore, not within the provision of sub-section (3) of section 3 of the Act, which prohibits the
employments of children under the age of 14 years in hazardous concerns. The Supreme Court
pointed out that this was a sad and deplorable omission which must be immediately set right by
every state government by amending the Schedule so as to include construction industry. This
could be done in exercise of the powers conferred under section 3A of the Employment of
Children Act, 1938. The Supreme Court hope that every state government will take the necessary
step in this behalf without any undue delay, because construction work is clearly a hazardous
occupation and it is absolutely essential that the employment under the age of 14 must be
prohibited in every type of construction work. That would be in consonance with convention 59
adopted by the International Labour Organization and ratified by India. But apart altogether from
the requirement of Convention No, 59 we have Article 24 of the Constitution which provides that

278
1990 AIR 1412, 1990 SCR (2) 861
279
AIR 1982 SC1473
312

Andhra University, Visakhapatnam

no child below the age of shall be employed to work in any factory or mine or engaged in any
other hazardous employment.

The Supreme Court held that Construction work is clearly a hazardous occupation and it
is absolutely essential that the employment of children under the age of 14 years must be
prohibited in every type of construction work. This is a constitutional prohibition which, even
not followed up by appropriate legislation, must operate proprio vigore. Further The Apex Court
observed that “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 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.

Through this judgment the Apex Court explore the doctrine of Locus Standi by saying
that not only aggrieved persons have a right to approach the court for redress their problems but
also public spirited institution or any person affect by the interest of the some persons can
approach the court on behalf of the aggrieved persons who are not in a position to come for
relief. In that case the Apex Court took notice on this point that no doubt constructive industry
did not come into the Category of schedule of Section 3of the Employment of Children Act 1938
but it violates the fundamental rights of the children by engaging them in a construction site
which is considered to be hazardous one and Article 24 of the Constitution also prohibits the
employment of children below the age of 14 years in factory or mine or any other hazardous
employment it is very irony that instead of giving them education they puts employment of
children in construction sites this operates propiro vigore of Art 24 of the Constitution . So they
go further extent by giving directions to the State governments for looking out the benefit of
children and they take stand in the absence of Child labour legislation for the welfare of the
children.

In Bandhua Mukti Morcha v. Union of India,280 the petitioner was an organization solely
devoted to the cause of bonded labourers in the country. The petitioner made a survey of some of
stone quarries in Faridabad District near Delhi and discovered that a number of labourers from

280
AIR 1984 SC 802
313

Andhra University, Visakhapatnam

different states of the country were working in those stone quarries under inhuman and
intolerable conditions and the majority of them were bonded labourers. A letter was addressed to
one of the judges of the apex court containing signatures and thumb marks of the alleged bonded
labourers.

The petitioner alleged violations of the provisions of the Constitution and non-
implementation of the laws relating to the labourers working in these stone quarries. It was
revealed that all these workers were bonded labourers who were not permitted to leave the job.
Most of the labourers complained that they got very little wages from the mine lesses or owner
of the stone crushers because they were required to purchase explosives with their own moneys,
the report concluded by saying that these workmen, “presented a picture of helplessness, poverty
and extreme exploitation at the hands of moneyed people” and they were found living a most
miserable life and perhaps beasts and animals could lead more comfortable life than these
helpless labourers”.

The preliminary objection raised by the respondents related to the maintainability of the
petition under Article 32 of the Constitution. The court expressed surprise over the manner in
which the State Government showed its urgency to raise this objection so as to avoid an enquiry
by the court as to whether the workman are living in bondage and under inhuman condition.
Sounding a note of caution, Justice Bhagwati observed, “The Government and its officers must
welcome Public Interest Litigation, because it would provide them an occasion to examine
whether the poor and down trodden are getting their social and economic entitlements or whether
they can continue to remain victims of deception and exploitation at the hands of strong and
powerful sections of the community” and whether a social and economic justice has became a
meaning-full reality for them or it has remained merely a teasing illusion and a promote of
unreality, so that in case the complaint in Public Interest litigation is found to be , true , they can
in discharge of their constitutional obligation root out exploitation and injustice and ensure to the
weaker sections their rights and entitlements.

When the court entertains public interest litigation , it does not do so in a caviling spirit or
in a confront national mood or with a view to titling at executive authority or seeking to usurp it ,
but its attempt is only to ensure observance of social and economic rescue programme,

314

Andhra University, Visakhapatnam

legislative as well as executive , framed for the benefit of the have-nots and the handicapped and
to protect them against violation of their basic human rights , which is also the constitutional
obligation of the executive. The Court is thus merely assisting in the realization of the
constitutional objective. The court expressed surprise by saying that if a complaint is made on
behalf of workmen that they are held in bondage and living in a miserable condition, it is
difficult to understand how such a complaint can be thrown out on the ground that it is not
violative of the fundamental right of the workmen.

Giving a new interpretation to the term “appropriate proceeding” contained in Article

32(1) Justice Bhagwati observed that, “there is no limitation in regard to the kind of proceeding
envisaged in clause (1) of Article 32 except that the proceeding must be, ‘appropriate’ and this
requirement of appropriateness must be judged in the light of the purpose for which the
proceeding is to be taken namely, enforcement of a fundamental right. The learned Judge
continued by saying that the framers of the Constitution did not lay down any particular form of
proceeding for enforcement of a fundamental right. They also did not stipulate that such
proceeding should confirm to any rigid pattern or formula because they knew that in a country
like India where there is so much poverty, ignorance, illiteracy, deprivation and exploitation, any
instance on a rigid formula of proceeding for enforcement of a fundamental right would become
self- defeating. In view of this position, the court observed that a simple letter by a member of
the public acting bonafide can be legitimately regarded as appropriate proceedings.

From the above observation it is concluded that a social organization who observed the
miserable condition of the bonded labourer working in stone quarries in Faridabad approach to
the apex court in the form of sending a letter which was treated as writ petition and the apex
court had considered their petition and directed the state government to proper implement the
provisions related to the Bonded Labour System (abolition) Act 1976 i.e. identified them
released and rehabilitate the bonded labourers.

The judgement of the Apex Court shows that the public interest litigation is acquiring
new dimensions for ensuring accountability of the public authorities towards the poor and
deprived. In fact, the state or public authority should welcome this move because it is primarily

315

Andhra University, Visakhapatnam

intended to correct wrong or to redress injustice done to the poor and weaker sections of the
community where welfare should be paramount considerations of the state or public policy.

Neerja Chaudhary v. State of Madhya Pradesh,281 is another momentous decision of the

apex court where the judiciary has taken a serious note of the indifferent and callous attitude of
the State Administration in identifying, releasing and rehabilitating the bonded labourers in the
country. The case arose on a letter of September 20, 1982 addressed to one of the judges of the
apex court by a petitioner who is a civil rights correspondent of Statesman in an article written
by her and published in the issue of Statesman dated 14th September, 1982 in which she set out
how these bonded labourers were without land and work, facing immense hardship and near
starvation in the absence of any rehabilitation assistance by the State Government.

It seems that once these freed bonded labourers were brought back to their villages, the
administration of the State Government thought they had discharged their duty and then they
conveniently forgot about the existence of this unfortunate specimen of humanity. That is why
when the petitioner interviewed some of these bonded labourers they said that they would rather
go back to the stone quarries for work then starve and added “we might have been killed there,
but we are also dying here”. The petitioner pointed out this statement in the leading newspaper in
the country. The petitioner stated that 135 bonded labourers who were working in the stone
quarries in Faridabad had been released from bondage by an order made by this court in the first
week of March, 1982 since they were found to be bonded labourers within the meaning of the
Bonded Labour System (Abolition) Act, 1976 and on release, they had been brought back to
their respective village in Bilaspur District of the State of Madhya Pradesh with a promise of
rehabilitation by the Chief Minister of that State. But when she visited three villages namely,
Kunda, Pandhari and Bhairavapura in Mungeli Taluka of Bilaspur District in September 1982,
with a view to ascertain whether or not the process of rehabilitation as promised by the Chief
Minister had commenced, she found that most of the released bonded labourers belonged to
these three village had not yet been rehabilitated though six months has passed since their release
and they are living almost on the verge of starvation. It may be pointed out that out of 135
released bonded labourers, about 75 belonged to these three villages and 45 out of them were
from village Kunda.

281
AIR 1984 SC1099
316

Andhra University, Visakhapatnam

 The petitioner also pointed out that some of the released bonded labourers owned land at
one time but they had lost it to the money lender and some of them had pledged their jewellery
and other small belonging to raise money for their subsistence. Therefore, the petitioner argued
that it was statutory obligation of the State Government to ensure rehabilitation of the free
bonded labourers and failure to do the same amounted to violation of the fundamental right of
the freed bonded labourers under Article 21 of the Constitution. The petitioner prayed for a
direction to the State Government to take steps for the economic and social rehabilitation of the
freed bonded labourers released in March, 1982.

When the writ petition came up for preliminary hearing, the court asked the State
Government to provide information for framing a scheme for rehabilitation including
constitution of vigilance committee as well as the steps taken for rehabilitating 135 released
labourers living in the village in Mungeli Taluka of District Bilaspur. An affidavit was filed by
the Assistant Labour Commission informing the court of the various steps taken by the State
Government for identification, release and rehabilitation of bonded labourers.

The court expressed its disapproval of the information supplied by the State
Government. It found that the attitude of the State government was indifferent and the State was
not willing to admit the existence of bonded labour as according to it unless a workmen was able
to show that he is forced to provide labour to the employer in lieu of an advance received by him,
he cannot be regarded as a bonded labourers within the meaning of the definition of that term as
laid down in the Act of 1976. But having regard to the decision of the Bandhua Mukti Morcha
case, the court reasserted its stand in the following word. “It would be cruel to insist that a
bonded labourer in order to derive the benefits of this social welfare legislation should have to go
through a formal process of trial with the normal procedure for recording of evidence. That
would be a totally futile process because it is obvious that a bonded labourer can never stand up
to rigidity and formalism of the legal process due to his poverty, illiteracy and social and
economic backwardness and if such a procedure were required to be followed, the State
Government might as well as obliterate this Act from the statute book.

Justice Bhagwati observed that whenever it is shown that a labourer is made to provide
forced labour, the court would raise a presumption that he is required to do so in consideration of

317

Andhra University, Visakhapatnam

an advance received by him and is, therefore, a bonded labourer. Unless the employer or the
government rebuts this presumption, the court shall presume that the labourer is a bonded
labourer entitled to the benefit of a provision of the Act.

In the facts of the case it came to conclude that the court has, issued direction to the State
government to include in the vigilance committee representatives of Social Action for
identification, release and rehabilitation of bonded labourer. It also made a number of
suggestions and recommendations for improving the existing state of affairs. One such
suggestion related to their re-organization and activation of vigilance committees.

It is submitted that the observations of the Apex Court in Neerja Chaudhary made in the
context of rehabilitation of free bonded labourers provide a new impetus to the observance of
provisions of labour welfare legislations as nay failure on the part of the State to implement the
same would contravenes the provisions of the Article 21 of the Constitution . It was a unique
case where the court compelled the state to implement with the directions issued in favour of the
bonded labourers.

Child Labour and Judicial Activism282

The judiciary has almost brought a revolution in the life of child workers in India. It has
always remembered to expand and develop the law so as to respond to the hope and aspirations
of people who are looking to the judiciary to give life and content to law. The judicial institutions
in India have played a significant role not only for resolving inter-disputes but also act as a
balancing mechanism between the conflicting pulls and pressure in the society. It has virtually
played a vital role in the task of providing political, social and economic justice to the poor child
workers in this country.

The judiciary has taken a stand when there is no proper enactment for the welfare of the
Child Labour and went to an extent of solving the problems of the children. Some in cases the
judiciary considered poverty as the reason for the exploitation of children and other economic
factors. The poverty and economic condition push the child in the condition of lurch. The
supreme court by its gave good lessons to the society which lead to the welfare of the children.

282
Judicial Activism: Dimensions and Directions, Edited by Prof. D. Benerjea, Prof. A.S ubramanyam and Prof.
Vijay Kumar, published by Vikas Publications, New Delhi, 2002.
318

Andhra University, Visakhapatnam

 Some of the cases were in this direction are Labourers Working on Salal Hydro-
Project v State of Jammu and Kashmir,283 In this case Justice Bhagwati observed that
construction work is a hazardous employment and therefore under Article 24 of the Constitution,
no child below the age of 14 years can be employed in construction works by reason of the
prohibition, enacted in Article 24 and this constitutional prohibition must be enforced by the
Central Government.

In this case the Supreme Court also agreed that child labour is a difficult problem and it is
purely on account of economic reasons that parents often want their children to be employed to
augment their meager earnings. And child labour is an economic problem, which cannot be
solved by mere legislation .Because of poverty and destitution in this country it will be difficult
to eradicate child labour, so attempts should be made to reduce if not to eliminate child labour
because it is essential that a child should have be able to receive proper education with a view to
equipping himself to become a useful member of the society and to play a constructive role in
the socio-economic development in the country.

They must concede that having regard to the prevailing socio-economic conditions it is
not possible to prohibit the child labour altogether and infact, any such move may not be socially
or economically acceptable to large masses of people .That is why Article 24 limits the
prohibition against employment of child labour only to factories, mines or other hazardous
employments clearly construction work is a hazardous employment and no child below the age
of 14 years can therefore be allowed to be employed in construction work by reason of the
prohibition enacted in Article 24 and this Constitutional prohibition must be enforced by the
Central .

The Supreme Court also suggested 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 to it or near the project site should
be given facilities for schooling because it is absolutely essential that a child should be able to
receive proper education with a view to equipping himself to become a useful member of the
society and to play a constructive role in the socio-economic development of the country. We

283
AIR 1984 SC 177
319

Andhra University, Visakhapatnam

must concede that having regard to the prevailing socio-economic conditions, it is not possible to
prohibit child labour altogether immediately and in fact; any such move may not be socially or
economically acceptable to large masses of people. Hence it can conclude that literacy is a main
cause of child labour.

In Lakshmi Kant Pandey v Union of India, 284 the court observed that it is obvious that in
a civilized society, the importance of child welfare cannot be over emphasized, because the
welfare of the entire community, its growth and development, depend on the health and well-
being of its children. Children are a supremely important national asset and the future well-being
of the nation depends on how its children grow and develop. The great poet Milton put it
admirably when he said “Child show the man as morning the day” and the Study Team on Social
Welfare said much to the same effect when it observed that the physical and mental health of the
nation is determined largely by the manner in which it is shaped in the early stages.

The child is a soul with a being, a nature and capacities of its own, who must be helped to
find them, to grow in their maturity , into fullness of physical and vital energy and the utmost
breadth, depth and height of its emotional intellectual and spirituality being; otherwise there
cannot be a healthy growth of a nation . Now obviously children need special protection because
of their tender age and physique, mental immaturity and incapacity to look after the usefulness.
That is why there is growing realization in every part of the globe that children must be brought
up in an atmosphere of love and affection and under the tender care and attention of parents so
that they must be able to attain full emotional intellectual, and spiritual stability and maturity and
acquire self-confidence and self –respect and a balanced view. Of the role which they to play in
the nation-building process without which the nation or cannot develop and real prosperity
because a large segment of the society would be then be left out of the developmental process.

In India his consciousness is reflected in the provisions enacted in the Constitution. It

enables the state to make special provisions inter alia for children285 and provides that no child
below the age of fourteen years shall be employed to work in any factory or mine or engaged in
any other hazardous employment.286 Clause (e) and (f) of Article 39 provides that the state shall

284
AIR 1984 SC
285
Article 15(3)
286
Article 24
320

Andhra University, Visakhapatnam

direct its policy towards –securing inter alia that the tender age of children is not abused, that
citizens are not forced by economic necessity to enter, avocations unsuited to their age and
strength and that children are given facility 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 abandonment. These constitutional provisions reflect the great anxiety of the
Constitution- makers to protect and safeguard the interests and welfare of children in the country.
The government of India has also in pursuance of the constitution provision, evolved National
Policy for the welfare of children. This policy with a goal oriented perambulatory introduction:

The Nation‘s children are a supremely important asset. Their nature and solicitude are our
responsibility. Children’s welfare programme should find a prominent part in our national plan
for the development of human resources, so that our children grows up to become robust
citizens, physically fit , mentally alert and morally healthy , endowed with the skills and
motivations needed by society. Equal opportunities for development to all children during the
period of growth should be our aim, for this would seem our larger purpose off reducing in
equality and ensuring social justice.

***

321

Andhra University, Visakhapatnam