Landmark order on prohibition of child labour

FOR IMMEDIATE RELEASE

High Court issues landmark order on prohibition and rehabilitation of “Child Labour”

Employment of Children below 18 years of age punishable under Section 374 IPC – State to rehabilitate identified children

April 12, 2013
Chandigarh

The first DB headed by Chief Justice A.K. Sekri and Justice R.K. Jain of Punjab and Haryana High Court have passed a detailed 36 page order on the issue concerning the issues relating to Child Labour while deciding a Public Interest Litigation (PIL) by social activist Hemant Goswami and others. The order holds many provisions of the existing Child Labour Act 1986 as illegal and provides for far-reaching reforms. The High Court also took note of the “UN Convention on the Rights of the Child” which India ratified on 11th of December 1992.

The High Court observed that, “We are of the opinion that provisions contained in Section 3 of the Child Labour (Prohibition and Regulation) Act, 1986 authorising the use of child labour in so called non-hazardous industries would offend the aforesaid constitutional mandate and would no longer be good law after the passing of RTE Act and the amendment in the Constitution by inserting Article 21A.” The order further reads, “We, thus, hold that there shall be total ban on the employment of children up to the age of 14 years, be it hazardous or non-hazardous industries. This would, however, be subject to the exception that child should only be allowed to work with the family in only those trades/occupations notified by the Child Labour Technical Advisory Committee as constituted under Section 5 of the Act of 1986 and for the sole purpose of learning a new trade/craftsmanship or vocation. This exemption too can only be permitted if the same is not in violation of Article 21-A and provisions of Article 51A(k) of the Constitution of India, i.e., where the child is attending regular school to get education. In case the child is not studying in a school, this exemption cannot be claimed even by the family as it affects rights of the child as protected by the Constitution of India especially those under Article 21 of the Constitution. ”

Addressing the issue regarding children in the age group of 14 years to 18 years, the High Court stated as follows, “The thorny issue, however, is about the “child labour” in case of children who are above 14 years of age. It is argued by Mr.Goswami that though the Child Labour Abolition Act, 1986 imposed no bar on the employment of such a child as labour, non-grant of protection to the children between 14-18 years of age creates certain contradictions, namely: Till the attainment of age of majority, no child can consent to any contract, even an employment contract. All employment contracts, whether verbally or in writing or implied would be void ab initio if entered with any person under the age of 18 years. The will of the person below 18 years of age can be said to be missing. Any employment of labour which is without the will of the person employed attracts provisions of Section 374 of the Indian Penal Code. Highlighting the aforesaid contradictions, it is argued by Mr. Hemant Goswami, who appeared in person, that employment of any person under 18 years of age should be treated as “prohibited and forced labour” attracting the provisions of Section 374 of the Indian Penal Code, as by that time such a person has not attained majority and is incapable of giving any consent. ” Deciding on the issue, the High Court held that, “We are of the opinion that whenever a child above the age of 14 years is forced to work, it has to be treated as an offence under Section 374 IPC and it is to be dealt with sternly. The problem, however, may arise when a child between 14–18 years of age is committed to labour by the parents willingly and with their consent. It may be difficult to prohibit the same. Having regard to the age of the child fixed under the Child Labour Abolition Act, we are of the opinion that in such circumstances, the case can still be brought before the State Commission formed under the CPCR Act, 2005 which has the jurisdiction to look into the matters of violation of child rights. ”

The issue regarding rehabilitation of children engaged in 'Child Labour' has also been addressed by the High Court and all the five suggestion given by the petitioner Hemant Goswami were accepted in full. The order read, “There is also a need for rehabilitation of such children in the society. Mr. Goswami has given the following suggestions in this behalf: (a) moving out the child from the exploitative environment (b) ensuring education (c) Ensuring Food/Meals/Clothes/ Necessities (d) Penalty/compensation should be for the benefit of the child (e) Regular monitoring .” After mentioning the details of all the suggestions, which makes it the responsibility of the State to admit the recovered child in School, provide food and lodging to him/her, compensation, etc., the order mentions, “We find these suggestions to be meritorious as they are backed with proper rationale and, therefore, these be treated as our directions. ”

The High Court also directed that the Commission of the Child Protection Commission in State should be properly selected after making proper rules and directed that, “the Chairperson should be a person who has been Judge of the High Court .” Besides the above, the order also directed that “Wherever the officers fail or neglect to take effective action immediately, apart from taking necessary disciplinary action, action can also be taken, in appropriate cases, under Section 166 IPC against such officers. ”

Expressing happiness over the order, Hemant Goswami emphasized that the State waste crores and crores on useless activities, even the funds meant for children were siphoned off. He added, “This order shifts the onus on the State to ensure effective implementation of the legislation and makes it mandatory on the State to provide food, lodging and education to affected children. The State or industrialists should not be in a hurry to push small children to the labour market by giving the excuse that if the children don't work, they will starve to death. The Government collects taxes for this purpose only. No loss would be caused to anyone if a young person enters the labour market at 18 instead of 14 years. Rather it will overall contribute towards nation building.”

ends

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