Judgment:
ORDER
1. This writ petition is filed by a public spirited young Lawyer Shri A. Srirama Babu to espouse the cause of unorganised, less and underprivileged children commonly described as 'Children of Lesser God' and who, according to him, have been left to fend for themselves uncared for, resulting in exploitation and deprivation of basic amenities of life and other constitutional and statutory safeguards guaranteed to a citizen of India which they are also entitled to enjoy like any other.
2. The writ petition has been filed mainly moved by the report appearing in the Kannada Daily 'Prajavani' dated 1-1-1997. The report contains a succinct account of the plight of the working and neglected children. The writ petition impleaded the State, the Secretary of Labor Department and the Labor Commissioner as party respondents. As these proceedings cannot be termed as an adversary litigation as such, on 17-1-1997, the Court directed Shri K.H. Jagadish, learned Government Advocate, to take notice on behalf of the respondents. Thereafter, LA. No. I was filed by a Society described as Campaign Against Child Labor (hereinafter referred to as 'CACL') to get themselves impleaded in these proceedings. Earlier, notice had been issued by this Court to them on 11-2-1997, on a representation made on their behalf by Sri Ravivarma Kumar, expressing their desire to participate inthe proceedings. This Court had also requested Ms. Neela Arun, Advocate, to appear alongwith the petitioner and assist the Court in these proceedings. Mr. Ravivarma Kumar appeared on behalf of CACL. This Court desires to place on record the generous assistance derived by the exhaustive research and study undertaken by these Counsels to conduct this case.
3. 'Child labor' is not a phenomenon or feature peculiar to this Country. This has been there all over the world. A publication by the Human Right Watch described as 'The Small Hands of Slavery' catalogues the following articles relating to several other Countries.
'Asia Watch and Human Rights Watch Women's Rights Project, A Modern Form of Slavery : Trafficking of Women and Girls into Brothels in Thailand (New York : Human Rights Watch, 1993), Americas Watch, 'Forced Labor in Brazil Revisited' Vol. 5, No. 12, November, 1993; Middle East Watch and Human Rights Watch Women's Rights Project, 'Rape and Mistreatment of Asian Maids in Kuwait', Vol. 4, No. 8, July 1992; Americas Watch, The Struggle for Land in Brazil : Rural Violence Continues (New York : Human Rights Watch, 1992); Americas Watch, 'Forced Labor in Brazil', Vol. SC 2, No. 8, December 1990; and National Coalition for Haitian Refugees, Americas Watch, and Caribbean Rights, Harvesting Oppression : Forced Haitian Labor in the Dominican Sugar Industry (New York : Human Rights Watch, 1990)'.
The following is the graphic description of the pathetic conditions of a child forced to labour for his employer described by Charles Dickens in his well known novel 'Nicholas Nickleby'.
'At this early hour many sickly girls whose business like that of the poor worm is to produce with patient toil, the finery that bedecks the thoughtless and luxurious, traverse our streets, making towards the scene of their daily labour and catching as if by stealth in their hurried walk, the only gasp of wholesome air and glimpse of sunlight which cheers this monotonous existence during the long train of hours that makes a working day. As she drew nigh to the more fashionable quarter of the town, Kate marked many of this class as they passed by hurrying like herself to their painful occupation and saw in their unhealthy looks andfeeble gait but to clear an evidence that her misgivings were not groundless'.
The reference contained in Bailey and Loves' 'Short Practice of Surgery' 12th Edition, indicates that there existed a practice employed by the chimney sweeper to make his child apprentice to climb up and down the chimney to sweep it. Such apprentice contracted the disease described as Squamous Epithelioma of the Scrotum. This was first brought to public attention in 1775 when Dr. Percival Polt, Surgeon, St. Bartholomew's Hospital, London, noticed the disease prevalent in apprentice of chimney sweepers. These recorded instances indicate the existence of child labour in other Countries as well in a pronounced manner. The existence of such practice in these Countries reduced with advancement of time and combating of the same by law enforcement agencies. In India the earliest legislative attempt in this behalf to prevent child labour commenced in 1850. With the progress of time, a plethora of enactments were legislated to protect children of tender age being exploited and abused and the State is acting conscious of its duty cast on them by the Constitution of India.
4. The issue has been recently considered by the Supreme Court in M.C. Mehta v State of Tamil Nadu and Others. Therein, prefacing the consideration of the issue, their Lordships stated thus:
'2. Our Constitution makers, wise and sagacious as they were, had known that India of their vision would not be a reality if the children of the Country are not nurtured and educated. For this, their exploitation by different profit makers for their personal gain had to be first indicted. It is this need, which has found manifestation in Article 24, which is one of the two provisions in Part III of our Constitution on the fundamental right against exploitation. The framers were aware that this prohibition alone would not permit the child to contribute its mite to the nation building work unless it receives at least basic education. Article 45 was therefore inserted in our paramount parchment casting a duty on the State to endeavour to provide free and compulsory education to children. (It is known that this provision in Part IV of ourConstitution is, after the decision by a Constitution Bench of this Court in Unnikrishnan J.P and Others v State of Andhra Pradesh and Others (has acquired the status of a fundamental right). Our Constitution contains some other provisions also to which we shall advert later, desiring that a child must be given opportunity and facility to develop in a healthy manner.
3. Despite the above, the stark reality is that in our Country like many others, children are a exploited lot. Child Labor 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'.
It remains a fact that in spite of the several Court verdicts, child labor still persists in a monstrous manner. A conjoint effort of all concerned is called for in implementing the decision. While considering the case, the above decision refers to the report of the Committee appointed by the Ministry of Labor, Government of India and the report prepared by the Government of India after survey of the above said report of the Committee. The conclusion arrived at in that report is adverted to, in the judgment which reads as hereunder:
'Extreme poverty, lack of opportunity for gainful employment and intermittancy of income and low standards of living are the main reasons for the wide prevalence of child labor. Though it is possible to identify child labor in the organised sector, which forms a minuscule of the total child labor, the problem relates mainly to the unorganised sector where utmost attention needs to be paid. The problem is universal but in our case it is more crucial'.
This report is seen prepared on 24-6-1981, on the basis of the Committee Report dated 29-12-1979. It is nearing two decades since then, and when the various materials made available to this Court in this case by the respective Counsels, when perused, this Court is constrained to state that the progress achieved istardy and would make even the snail's pace an enviable proposition.
5. In the judgment referred to above, namely M.C. Mehta's case, supra, the Supreme Court, after considering the complex issue, has issued the following directions:
'31. To give shape to the aforesaid directions, we require the concerned States to do the following:--
(1) A survey would be made of the aforesaid type of Child Labor which would be completed within six months 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 sector, to determine which the hazardous aspect of the employment would be taken as criterion. The most hazardous employment may rank first in priority, to be followed by comparatively less hazardous and so on. It may be mentioned here that the National Child Labor Policy as announced by the Government of India has already identified some industries for priority action and the industries so identified are as below:--
The Match Industry in Sivakasi, Tamil Nadu.
The Diamond Polishing Industry in Surat, Gujarat.
The Precious Stone Polishing Industry in Jaipur, Rajasthan.
The Glass Industry in Firozabad, Uttar Pradesh.
The Brass-ware Industry in Moradabad, Uttar Pradesh.
The Hand-made Carpet Industry in Mirzapur-Bhadchi, Uttar Pradesh.
The Lock-making Industry in Aligarh, Uttar Pradesh.
The Slate Industry in Markapur, Andhra Pradesh.
The Slate Industry in Mandsaur, Madhya Pradesh.
(3) The employment to be given as per our direction could be dovetailed to other assured employment. On this being done, it is apparent that our direction would not require generation of much additional employment.
(4) The employment so given could as well be the industry where the child is employed in a public undertaking and would be manual in nature in as much as the child in question must be engaged in doing manual work. The undertaking chosen for employment shall be one which is nearest to the place of residence of the family.
(5) In those cases where alternative employment would not be made available as aforesaid, the parent/guardian of the concerned child would be paid the income which would be earned on the corpus, which would be a sum of Rs. 25,000/- for each child, every month. The employment given or payment made would cease to be operative if the child would not be sent by the parenfguardian for education.
(6) On discontinuation of the employment of the child, his education would be assured in suitable institution with a view to make him a 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.
(7) 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. Further, in view of the magnitude of the task, a separate cell in the Labor Department of the appropriate Government would be created. Monitoring of the scheme would also be necessary and the Secretary of the Department could perhaps do this work. Overall monitoring by the Ministry of Labor, Government of India, would be beneficial and worthwhile.
(8) The Secretary to the Ministry of Labor, Government of India would apprise this Court within one year from today about the compliance of aforesaid directions. If the petitioner would need any further or other order in the light of the compliance report, it would be open to him to do so.
(9) We should also like to observe that on the directions given being carried out, penal provisions contained in the aforenoted 1986 Act, would be used where employment of a child labor, prohibited by the Act, would be found.
(10) Insofar as the non-hazardous jobs are concerned, the Inspector shall have to see that the working hours of the child are not more than four to six hours a day and it receives education at least for two hours each day, it would also be seen that the entire cost of education is borne by the employer'.
The arguments advanced by the respective Counsels is that further directions are necessary to compel the State to act.
6. As stated earlier, there are many enactments enacted by the State to prevent child labor. The provisions thereof have been culled out in the abovesaid judgment of the Supreme Court. In particular, they are:
'(i) Section 67 of Factories Act, 1948:
'Prohibition of employment of young children.--No child who has not completed his fourteenth year shall be required or allowed to work in any factory'.
(ii) Section 24 of Plantation Labor Act, 1951:
'No child who has not completed his twelfth year shall be required or allowed to work in any plantation'.
(iii) Section 109 of Merchant Shipping Act, 1951:
'No person under fifteen years of age shall be engaged or carried to sea to work in any capacity in any ship, except--
(a) in a school ship, or training ship in accordance with the prescribed conditions; or
(b) in a ship in which all persons employed are members of one family, or
(c) in a home-trade ship of less than two hundred tons gross; or
(d) where such person is to be employed on nominal wages and will be in the charge of his father or other adult near male relative'.
(iv) Section 45 of Mines Act, 1952:--
'(1) No child shall be employed in any mine, nor shall any child be allowed to be present in any part of a mine which is below ground or in any (open cast working) in which any mining operation is being carried on.
(2) After such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf no child shall be allowed to be present in any part of a mine above ground where any operation connected with or incidential to any mining operation is being carried on'.
(v) Section 21 of Motor Transport Workers Act, 1961:--
'No child shall be required or allowed to work in any capacity in any motor transport undertaking'.
(vi) Section 3 of Apprentices Act, 1961:-
Qualifications for being engaged as an apprentice.--A person shall not be qualified for being engaged as an apprentice to undergo apprenticeship training in any designated trade, unless he.--
(a) is not less than fourteen years of age, and
(b) satisfies such standard of education and physical fitness as may be prescribed:
Provided that different standards may be prescribed in relation to apprenticeship training in different designated trades and for different categories of apprentices.
(vii) Section 24 of Beedi and Cigar Workers (Conditions of Employment) Act, 1966:--
'Prohibition of employment of children.--No child shall be required or allowed to work in any industrial premises'.
(viii) Child Labor (Prohibition and Regulation) Act, 1986 (Act 61 of 1986).
(ix) Shops and Commercial Establishments Acts under different nomenclatures in various States'.
Article 24 of the Constitution provides:
'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'.
It can be seen from the provisions of the various legislation referred to above (except Plantation Labor Act 1951) fourteen years has been treated as the cut-off age for treating an individual as a child. Thus, it is clear that no child below the age of fourteen can be employed or engaged in a hazardous employment.
7. Mr. Ravivarma Kumar has voiced the complaint that the latest statistics based on the Census of the year 1991 relating to Child Labor for the State of Karnataka (as has been done after 1981 Census) has not been published so far though it is six years after the completion of the Census work. He submits that these statistics are necessary to assess and understand the complexity of the problem. Therefore, on direction from this Court, Mr. Jagadish, learned Government Advocate, has filed a statement disclosing the details of child labor as on the basis of Census prepared for 1991. It is to the following effect:
ChildLabor
Year
Age
Main Worker
Marginal Worker
Male
Female
Male
Female
1981
(0-14)
6,11,010
3,55,329
34,351
1,30,840
1991
(5-14)
4,61,442
3,56,717
37,199
1,20,889
Main Workers means children who are in full time employment. Marginal Workers means children who are employed on part-time basis. The details regarding the third category of workers who are neither working nor attending schools are not available (this was a separate category in 1981 Census). As far as they are concerned, their strength in Karnataka as per 1981 Census was 42,72,421. It is important to notice that none of these children (i.e., the three categories referred to supra) are attending the schools. It means, nearly 54,03,951 children were in Karnataka in the year 1981 who had not attended the schools and were illiterate. All of these children by lapse of 15 to 16 years by now have become adult members of the society. Here again around 43 lakhs have grown up and fused into the main stream of the society as illiterates andunemployed. Likewise, around 11 lakhs of adults are in the chain of the society who grew up uneducated and deprived of their childhood. It is important to remember that this is not a static affair. There is continuous and incessant upgradation of the number every year as more and more children grow and merge into the society as illiterates and unemployed.
8. Several literatures have grown around the topic of child labor. On a comparative study of the same the root cause to this social malady has been catalogued as hereunder:
(1) Poverty;
(2) Low wages of the adult;
(3) Unemployment;
(4) Absence of schemes for family allowance;
(5) Migration to urban areas;
(6) Large families;
(7) Children being cheaply available for employment;
(8) Non-existence of provision for compulsory education;
(9) Illiteracy and ignorance of parents; and
(10) Traditional attitudes.
(Vide 'Indian Child Labor' Dr. J.C. Kulshresta as referred to in M.C. Mehta's case, supra).
We have thus discovered the cause for the ailment, but we do not have the means to cure the ailment.
9. Various conferences have been convened to sort out the ways and means to fight the evil. As per various convention held under the aegis of the United Nations, the rights of the child have been declared to be the obligation of the State. It is the duty of the State to translate the rights of children into reality. The reality visualised are care and protection, meeting of medical treatment and assisting the child to grow into a health (both physically and morally) member of the society. These activities have to be evaluated regularly to reassure that the children do benefit from source provided by the State such as adequate standard of living, security of living and other minimal requirements. The Government of India is party to several Conventions on Human Rights and has been signatory to thesame as well. It is, therefore, incumbent on them also to oversee the activities of the State and provide adequate safeguard for the welfare of the children, such as that the children be covered by a Health Programme, prevent compulsory or forced labor, prevent debt bondage, prevent the natural guardian delivering the child to bondage due to economic privation, etc.
10. Article 45 of the Constitution of India declares that the State shall take steps for free and compulsory education for all children till they attain the age of 14. Article 39(f) of the Constitution reaffirms that the State shall endeavour that the children be protected against the cruelty and exploitation and against moral and material abandonment. Article 24 reaffirms that no child under the age of 14 be exposed to hazardous occupation or be made to undertake certain nature of works. While Article 24 is part of the fundamental right, Article 45 has been declared to be a fundamental right (vide Unnikrishnan's case, supra). The right recognized by Article 39(f) is undoubtedly an incident of right guaranteed under Article 21 of the Constitution which is part of the fundamental right guaranteed to a citizen under the Constitution.
11. Therefore, the Courts can always issue directions to the State to enforce these fundamental rights. Besides, in the case of a minor, the guardianship of a minor vests in the sovereign, i.e., the State. Hence, de hors the above provisions, it has a duty to take care about the welfare of a minor. The following passage from Budhkaran Chaukhani and Others v Thakur Prosad Shah and Another , makes this aspect clear:
'.....The Hindu Rishis made it a duty of the King to look after the infants' properties and consequently the legal position in this respect must be determined with reference to the principles of justice, equity and good conscience. As regards the guardianship of an infant, the Hindu Law vests it in the King as parens patriae'.
The above conclusion is arrived at by their Lordships after referring to Manu (Chapter VIII, Stanza 28), Gautama (Chapter X, Stanza 48) and Vasishta. Thereafter, after referring to the Ancient Law giver Narada, their Lordships state thus:
The father has the first claim; after him comes the mother, and then comes the elder brother. His power as such guardian will be determined by the King and will extend to whatever may be deemed justly required for the benefit of the infant'.
The Sovereign had entrusted the guardianship to the parents. If they fail, the Sovereign can resume the right.
12. But one wonders as to where we stand even after the passage of fifty years of Independence and 46 years of the Republic. From saying to doing is a long step. I am constrained to opine as above after perusing the detailed statement filed on behalf of the CACL in these proceedings. That Association has made a detailed survey of the child labor generally in India and more particularly in Sericulture Industry in Karnataka. They have detailed various practices prevalent in this State as regards the Sericulture Industry when a child due to economic or other necessity is denied to undertake any of his developmental activity and is compelled to lead prematurely an adult life, obliged to work long hours for his own existence and for the need of the family, unmindful of his health and that of his future. Thus, as far as he is concerned, the rights guaranteed under Article 24, Article 39(f) and Article 45 is a mirage that only exists on the paper.
13. As has been earlier noticed, there are large number of children being engaged to discharge work that are primarily and essentially earmarked for adults. The reason for such functioning is mainly poverty of the child laborer and his family and the need to supplement the low wages earned by the adult in the family of the child laborer. Besides the unemployment of the adult member in the family or the availability of large number of children for employment on low wages do also provide other cause for prevalence of child labor. Illiteracy and ignorance of the parents are yet the other factors which aggravate the situation. The root cause for these employment is the cheapness of the overheads if children are employed. As can be seen from the Minimum Wages Act and Rules, different wages can be fixed for adults and children in an industry where he can be legally employed. (In this behalf, see the judgment of the Supreme Court in M.C. Mehta v State of Tamil Nadu and Others . Their Lordships opine thus:
'7. 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. We are also of the view and learned Counsel on both sides have agreed that minimum wage for child labor should be fixed. We take note of the fact that the tender hands of the young workers are more suited to sorting out the manufactured product and process for the purposes of packing. We are, therefore, of the opinion that in consideration of their special adaptability at least 60% of the prescribed minimum wage for an adult employee in the factories doing the same job should be given to them. Our indicating the minimum wage does not stand in the way of prescription of a higher rate if the State is satisfied that a higher rate is viable'.
Therefore, a different fixation of wages is recognised in law as well. As a matter of fact, the Government of Karnataka in its Notification dated 16-12-1996, fixing minimum wages for Hospital employees under Section 3 of the Minimum Wages Act, has fixed 60% of the wages fixed for adults as the minimum wages for children. In other cases, where he cannot thus be employed at all, this fixation of two categories of wages is immaterial. When the family suffers due to economic privation and poverty, the parents are unwillingly made to part with their children to work in wherever they find employment. And as regards the industries where they can be legally employed, they earn a lower wages as provided by the law itself.
14. The CACL points out that there are a large number of industries in Magadi Taluk engaged in the manufacture of silk yarn employing exclusively without any inhibition child labor in the looms. These factories employ, according to them, children below the age of 14 (Age stated is around 5 to 8). The description provided by them, of the working condition of these children in these areas are alarming and would disturb the conscience of any person. But, as none of the industries are parties to these proceedings, it is not possible for this Court at this stage to pronounce on the correctness of these allegations (nor would it be correct as well) without hearing them or without conducting further enquiries. I refrain from doing so at this stage as it is not possible for this Court to undertake such a roving detailed investigation with respect to these establishments in this writpetition filed by the petitioner herein. I am informed, there are over 1000 such establishments functioning. A list of such industries have been furnished by the CACL, but without notice, it is not proper to comment on them. Suffice it to say that the averments made by the CACL in this behalf, if correct, makes a gruesome reading of the situation prevalent in these industries. I make it clear that without further investigations into the matter, it is not safe to pronounce either way.
15. Mr. Ravivarma Kumar, the Counsel for the CACL submits that it will be clear, if a proper and legal investigation is conducted in this behalf, the allegations made by the CACL with respect to the industries cited above are correct. There can be no doubt that many of them undoubtedly would come within the ambit of 'factories' as defined in the Factories Act, 1948. As can be seen from Section 67 of Factories Act, 1948 thereof, no child below 14 years of age can be employed in a factory. Section 6 of the Factories Act and Rule 4 of the Karnataka Rules framed under the Act, provide that no premises can operate as a factory unless it is licensed as such. One does not know whether these establishments possess a licence under the Factories Act. Only if it is licensed under the Factories Act can the authorities under the Act, check whether Section 67 is violated. The fact whether they are licensed or not can be verified by cross-checking of the application made by them to the Karnataka Electricity Board for supply of electrical energy. At this stage, as a doubt was raised to the effect whether such licence need not be produced for supply of electrical energy, this Court issued notice to the Karnataka Electricity Board so as to ascertain factual position and to clarify the same. Shri B.C. Prabhakar, learned Counsel appeared on behalf of the Board and made his submissions. He submitted that the Board is not insisting on the production of such licence secured under the Factories Act to avail supply of electrical energy by factories and other establishments. I am afraid that this is a clear misconception of the provisions of law. Chapter IV of the Electricity Supply Regulations 1988, deals with the procedure for permanent supply of electrical energy. In Clause 7.01 of the Electricity Supply Regulations, 1988, it is provided as hereunder:
'7.01. Attested true copies or photostat copies of the following documents shall be submitted along with the application:
(a) License/Permit/No Objection Certificate from the local body and/or such other authorities as may be required under the statute.
(b) In case of lease, registered lease-deed.
(c) In case of a partnership firm, registered partnership deed.
(d) In case of a Limited Company, Memorandum and Articles of Association and Certificate of Incorporation.
Note.--However, there is no necessity of production of the licence from the Local Authority when the supply is required for an industry to be set-up in an Industrial Estate established by KIADB/KSSIDC'.
The wordings of Clause 8.02 relating to H.T. supply are also identical. According to me, in both Clauses 7.01 and 8.02, Clause (a) provides that when a person intends to avail of supply of electrical energy for L.T./H.T. supply, he has to produce along with his application, licence or 'No Objection Certificate' obtained from the local body and /or such other authorities as may be required under the statute. The word 'and' in Clause (a) has to be read in conjunction with the words 'as applicable' in the main clause. This means, besides the production of licence from the Local Authority, a person intending to draw electrical energy for any purpose for which a licence etc., would be needed under any specific enactments or other authorities, he has to produce the said licence etc., as well along with the application for supply of electrical energy. There cannot be any misunderstanding of the statutory position. Under Section 6 read with Rule 4 of the Factories Act, it is essential that the occupier should have obtained a licence before using a premises as a factory. Over and above that, Section 256 of the Municipalities Act also contemplates securing of a licence if a premises is to be used for the purposes in Part I of Schedule XIII (Item 19 in the Schedule in Silk reeling from the cocoon). There are similar provisions in the Bye-laws framed under the Panchayat Act as well. If these requirements are not there in the statute, then the Electricity Board can supply power to any establishment it likes and the consumer can utilise the electrical energy in whichever manner he likes. Such action of the Board would lead to 'electricity anarchy' hardly contemplated by thestatute. The submission of Mr. B.C. Prabhakar, learned Counsel for the Karnataka State Electricity Board, that according to his instruction, no such licence need be produced along with the application for supply of electrical energy for L.T./H.T. to industry has only to be rejected. The Electricity Board has to satisfy themselves by examining whether the particular applicant has secured the required permission under the Act controlling the activity proposed to be carried on by that person in the premises applying for supply of electrical energy. This is clear from the provisions referred to above. The contention to the contra has, therefore, only to be rejected. As the industries referred to in the preceding paragraph are not parties to the proceedings, this is a question which the Appropriate Authorities should examine after issuing notice to them. I leave this question to be examined by the Karnataka Electricity Board. In doing so, it shall also ascertain from the Chief Inspector of Factories whether these establishments have secured licence under the Factories Act and Rules and from the concerned Local Authority whether any licence has been secured under Section 256 of the Municipalities Act or the corresponding provision of the Panchayat Act. The Electricity Board is bound to examine these aspects and take appropriate follow up action.
16. Now, as regards the complaint of CACL regarding the large extent of the child labor in Sericulture Industry is concerned, I am of the view that this requires serious consideration by the Appropriate Authority. At the first instance, the Commissioner of Labor should conduct a detailed investigation with respect to the various establishment pointed out by CACL whose names shall be furnished by them to the Commissioner. I am aware that this Court is dealing with the matter without hearing these establishments. I do not think such hearing is called for at this stage, because, as can be seen from the facts alleged, what is being complained of, is the violation of the Constitutional provision. The child below the age of 14 years cannot be employed in any hazardous industry. There may be a contention that the Sericulture Industry is not a 'hazardous industry' and that even if children are employed, there cannot be any legal objection. But I am of the view that a wider meaning has to be ascribed to the expression 'hazardous industries'. 'Hazard' is not to be understood as physical threat or injury alone. If the consequence of the labor rendered by himrenders the child a sick and prematurely aged person, such labor certainly causes hazard to the health of the worker. The following is the description given by the CACL as to the consequence suffered by a child laborer at the end of the avocation he carries on:
'11.2 Also, the study reports make it clear that although many of the economic activities in which children are engaged have not yet been categorised as 'hazardous' with respect to the Child Labor Act and are, therefore, not on the list of banned occupations, they do indeed pose a risk to the health, growth and well-being of the children concerned. Sometimes the very nature of the process and/or the toxicity of the substances involved in a particular work situation makes it dangerous/hazardous/ harmful, particularly for children. At other times, even if the work itself is not inherently dangerous, the conditions of work (e.g., long hours, paucity of light and ventilation, lack of hygiene, constant exposure to polluted air and/or prolonged contact with polluted water, inappropriate posture, etc.,) are harmful, especially for children.
11.3 It is clear from the reports that, apart from the general dangers inherent in child labor, each activity in which child workers are engaged poses its own, peculiar health hazards, which threaten the physical growth and well-being of the children concerned. For instance, the following is a list of some of the work-related health hazards that children are exposed to in various occupations:
Beedi-rolling: chronic bronchitis, tuberculosis.
Glass industry: asthma, chronic bronchitis, tuberculosis, eye defects, burns.
Handloom and carpet industries: asthma, chronic bronchitis, tuberculosis, posture-related spinal problems.
Zari and embroidery: eye defects.
Gem polishing and diamond cutting: eye defects, injuries.
Construction: accidents, stunted growth
Rag picking: skin diseases, infectious diseases, tetanus.
Pottery: asthma, chronic bronchitis, tuberculosis.
Stone and Slate quarries: silicosis
Sex work: sexually transmitted diseases, AIDS
Agriculture: hazards related to farm machinery and pesticides'.
If this be the health hazards that a child faces by pursuing an unwilling avocation, then it is only to be held that all employments which cripple the health of a child and which disable him from being a healthy member of the society should be treated as a hazardous industry. A hazardous industry should also include every industry involving manual employment of a laborer which not only cause physical injury to the worker, but may also result in contracting serious physical illness to the laborer. This is a matter which requires further investigation. At this stage, this Court is proceeding presuming that these establishments have not acted against the provisions of the Constitution. In the light of the apprehension expressed, all that this Court directs is that the Commissioner of Labor may issue notice to these establishments whose names are furnished by the CACL as also to the CACL and thereafter conduct an enquiry to ascertain the allegations made by the CACL. The allegations made in brief are to the effect that these industries are employing large number of child labor. The Commissioner of Labor may also depute an Officer subordinate to him or such number of Officers as are necessary and make a local inspection with respect to these industries to satisfy as to whether there has been any infraction of the mandatory and constitutional provisions in any manner. If there is evidence of any such violation, he shall take appropriate consequential action in this behalf. This enquiry shall be completed within six months from the date of receipt of the list. This direction is suffice to dispose of the complaints voiced by the CACL in regard to Sericulture Industry at this stage.
17. The State has produced a document to indicate the progress achieved by them in the 13 Districts in the State with regard to eradication of child labor. I have perused the same. It makes an interesting reading. It discloses that large sums of money were made available from the Government of India for appropriate steps to be taken in the matter of eradication ofchild labor. The following discloses the specimen as to how the money has been utilised:
Budgetreleased by GOI:
Amountspent so far
Progressachieved
Remarks
(6)
(7)
(8)
(9)
(inlakhs)
Rs. 5-00
Rs. 1.95
(inlakhs)
Rs. 5,000/-
Rs.1,42,500/-
a)Spent for touring
Tamilnadu and Andhra Pradesh.
(b)Spent for survey & awareness
Rs.5.00
Rs. 1.95
__
Noachievement __
-do-
__
Noachievement __
-do-
Rs.3,95,000/-
Spentfor awareness and survey.Survey has been completed with the help ofAnganawadi workers and child labor found in hazardous occupations is 1,388and non-hazardous is 32,554.
Rs.5.00
Rs. 1.95
Rs.59,361/-
Spenton survey.
Survey has been commenced with the help of Anganawadi workers
Rs.20,88,300/-
Rs.5.75
Rs. 5.00
Rs. 1.95
Rs. 8,17,800
Noexpenditure
__
Rs.5.00
Rs. 1.95
Rs.10,080
Rs. 1,08,743
Spentfor survey.
Spent for awareness.
Completed survey and child labors found innon-hazardous occupations is 1,081
Rs.5.00
Rs. 1.95
Rs.90,000
Rs. 34,000
Spentfor survey
Spent for awareness
Survey has been completed in the month ofOctober 1996 and child labor identified in hazardous occupations is 9,097.
Rs.5.00
Rs. 1.95
Rs.30,000
Forsurvey (for printing the forms)
Survey has been commenced by entrusting thesurvey work to 3 NGOs.
Rs. 5.00
Rs. 1.95
Estimated
Rs.1.07 lakhs
Forsurvey and awareness
Survey is commenced just now.
Sanctionedbudget:
Rs. 69,26,000
Released-
(a)
(b)
(c)
5.00
1.95
24,53,600
(Awareness)
(Survey)
(forSpecial Schools)
Rs. 65,493
Rs. 34,000
Rs. 12,25,496
Spentfor Awareness
Spent for Survey
Spent for Special Schools.
Sanctioned budget:
Rs. 69,26,000
ForSpecial
Rs.3,33,680
For awareness
Released:
1995-96
Rs. 8,95,100
Schools
Rs.11,650
For survey
1996-97
Rs. 15,63,500
Rs. 5.00
(Awareness)
Rs. 1.95
(Survey)
Surveyconducted through Anganawadi Teachers and Students. No. of child labor foundin hazardous occupations is 21,277/- and in non-hazardou is 86,362/-
This discloses that the amount has been spent for touring various places. Literally, the money has gone down the drain. I am afraid that certainly what is attempted to is not the viable method to utilise the funds made available by the Government for a noble cause. When such amount is made available to the State for a particular purpose, they hold the money as a Trustee. Any misapplication of the fund would be misappropriation of Trust Fund. There should be more constructive steps taken by the authorities to effectively utilise the fund made available.
18. The various allegations made by the petitioner, by Mr. Ravivarma Kumar and by Ms. Neela Arun in the course of argument disclose that much has not been achieved by the State in the matter of eradication of child labor. The vice is growing day by day into unmanageable proportion. Certainly the Government has no magic wand with which they can do away with the child labor overnight; but certainly it should launch a process by various legislations to discourage the practice of child labor. These legislations are like implements to work with, which should be put to proper use and utility by utilising the same. It is not sufficient to enact such statutes and leave the issue at that. Now, as can be seen from Unnikrishnan's case, supra, right to education is declared as a fundamental right. A child has a legal right to be educated. The State has a duty to provide a child an effective opportunity to get educated. Steps should be taken to enable the child to enjoy this right. There should be constant propaganda against Child Labor. As directed by the Supreme Court in M.C. Mehta's case, supra, a survey should be undertaken to identify the child laborers and appropriate Committees be constituted to chalk out ways and means to implement the directions contained in the said judgment. The endeavour and attempt should be to prevent child labor. The public should be educated by constant publicity of the evil of child labor and the legal measures being taken by the State to fight the same. As pointed out by the CACL, there are several aspects which operate as stumbling block in effectively checking the child labor. The first in the list is poverty; this is a major cause promoting child labor. No Government can, by legislative measure, wipe out poverty from the face of any Nation. All that it can attempt to, would be to take steps to reduce poverty by generating more employment opportunities. A method to increase employment potential would be to prevent availability of labor on payment of wages to sub minimal level. As for instance, if the State declares that the wages payable be uniform, irrespective of male, female, adult or child, a desire to employ cheap labor may not arise. This would be an inducing factor to employ adult bread winner of the family himself instead of searching to engage his child. As stated earlier, the Minimum Wages Act and Rules permit such differential treatment. In fact, the Government of Karnataka in its Notification dated 16-12-1996, fixing minimum wages for Hospital workers, state that 60% of the wages be fixed as the wages payable to a child laborer. Will not this encourage a prospective employer to employ the child than an adult? This needs a re-look and an abolition of such difference would certainly go a long way in increasing employment potential for grown up and dissuade the employer from employing child labor. It has not been pointed out to this Court that there are parents who are willing and who compel a child to go to work. It happens due to sheer economic necessity. If that is so, if theState steps in and extends retarding influence not to employ children, then the practice of child labor may wane out. Otherwise, the practice will stand still perpetuated. Therefore, one of the means to achieve is to examine in this behalf the prospects of fixation of the minimum wages for adults and children equally. If that is enforced properly there will be decrease in child labor and increase in more employment prospects to the rest.
19. The learned Counsel Mr. Ravivarma Kumar indicated that the State can also consider the feasibility prohibiting a child working during school hours. This is also a vital aspect to be considered. The Supreme Court has issued appropriate directions in this behalf and it is, therefore, unnecessary for this Court to deal with the issue over again.
20. There is yet another aspect to be noticed, while dealing with the legislation already enacted by the State to prevent and discourage child labor. Ms. Neela Arun, learned Counsel, submitted that the following are the important legislations in force, which enable preventing of Child Labor.
1. Apprentice Act, 1961
3. Children (Pledging of Labor) Act, 1993
4. Child Labor (Prohibition and Regulation) Act, 1986
But a perusal of these legislations shows that it had provided enough loophole for an offender to escape.
21. As for instance, we will examine the provisions of the Child Labor (Prohibition and Regulation) Act, 1986. This has been enacted by the State with the avowed object of prohibition of child labor in certain employments and to regulate such employment in certain other employments. This Act has been hailed by one and all as having far reaching consequences. Here we may advert to the following aspects:--
(i) Section 3 of the Act declares that no child shall be employed or permitted to work in the occupations included in 'A' and 'B' Schedules to the Act. The section makes a distinction in that there is total prohibition to work in any of the occupation set forth in Part-A, whereas the total prohibition as far as the occupation referred to in Part-B is concerned, is only for workingin a workshop where such occupation is carried. That is to say, that the statute bars employment of a child if the occupation mentioned in Part-B is carried on in an organised systematic manner in a workshop, but there is no prohibition to his being employed at a place where it is carried on in a disorderly manner since that is not a workshop. This distinction should not exist and be done away with. The occupation mentioned in Part-B is equally hazardous to health as those mentioned in Part-A. Therefore, the prohibition to employ a child should exist in both.
(ii) Section 14 of the Act states that any violation of the provisions of the Act is punishable with simple imprisonment which extend to one month or with fine which may extend to Rs.10,000/-. The punishment to be awarded in cases of violation of the statute should be deterrent. The punishment laid down under Section 14 can hardly be described as a deterrent punishment. In this context, we may also advert to Section 15. Section 15 states that any person found guilty of the offences under:--
(1) Section 67 of the Factories Act (employing of a child under fourteen years of age).
(2) Section 40 of the Mines Act (employment of workers under eighteen years of age and apprentices under sixteen years of age).
(3) Section 109 of the Merchant Shipping Act (employment of children under 15 years of age).
(4) Section 21 of the Motor Transport Workers Act (employment of a child who is less than 14 years of age).
shall be punished under Section 14 of the present Act and not under the enactments referred to above. I am of the view that this Section requires amendment making the punishment under Section 14 be in addition to the punishment under the above Act. Because if one is proceeded under the Factories Act, the delinquent faces more serious punishment for violation. Section 92 of the Factories Act provides for imprisonment which may extend upto two years or a fine which is upto one lakh of rupees. Hence an occupier of a Factory saves himself from the appropriate punishment contemplated under the Factories Act if proceeded under Section 14 of the present Act. This certainlyrequires appropriate amendment. The punishment under the present Act should be made in addition to the punishment under the above said enactments.
(iii) Section 9 of the Act only mandates the occupier of the particular establishment in which a child is employed to send notice to the Inspector of such employment. This means, notice need be given only if a child is employed. This provision in fact acts as a safety valve for the employer to escape from the rigors of the Act. Violation thereof may arise when a notice is not sent and still a child is employed. Unless the Inspector conducts inspection of every establishment, he cannot discover the violation. Even if discovered, any number of defences can be visualised with respect to the point of time when the child was employed. Therefore, it should be made a mandatory condition that every occupier of an establishment should send a notice to the Inspector containing the information regarding the employment of a child either in the affirmative or in the negative, annually. Such an affirmation will assist the authorities to cross-check whether the establishment is employing or not employing a child. This legislation should come alive and should cease to be an ornamental legislation intended to subside the hue and cry of the public.
22. As we have seen earlier, all that is said hitherto takes care of the 'haves' in the society. The statistics placed by the State indicate that there are more 'have not' than 'haves' in the society among the children. One has seen that every attempt made is to strive at the welfare of the working children. But there are more number of children poverty-stricken and who are not working as well. Perhaps, as expressed by the learned Counsels appearing in this case, a strict enforcement of measures to prevent child labor may lead to rendering these working children also children who are not working. Serious thought has to be bestowed on these aspects as well.
23. We will now consider as to what direction need be issued in this behalf.
(A) To begin with, the State shall take every step to educate the people to prevent child abuse and child labor.
(B) As indicated by the Supreme Court, the State should create a separate independent department concernedwith child welfare. It cannot be denied that the future of the Nation depends on the children of today, and hence appropriate steps should be taken to safeguard their interest.
(C) The State should maintain a record of the birth and progress of the child. It should monitor the same. A child, after he is born, should not be allowed to melt and disappear in the vast society. The State should be able to monitor his education, health, progress, etc. The State should maintain records till he attains the age of 14 and ascertain as to whether he is in the school and studying, whether gainfully employed, of the nature of employment if employed, the reports received under the Labor Legislation by the Authorities after checking the work place, and such other relevant materials. The work being undertaken would be gigantic but the difficulties can be tided over once the system starts functioning and is streamlined. It can also consider delegating these powers and manning of these works to Panchayats or other Local Authorities, as the case may be.
(D) It should take such effective steps to prevent vagrant child roaming in the city and towns. It should prevent the child existing as if unaccounted. Children just out of their cribs, begging and roaming in Railway Platform, Bus-Stations and Road Junctions is a common sight in any city. Such children huddling in the foot-path during winter struggling to keep themselves warm, should generate a legitimate question in any passers-by. Do we not have any responsibility for them? The answer should be an emphatic Yes. The State has to act in this behalf.
(E) The State should organise and maintain after care home to take over the vagrant children. Appropriate legislation be made and be enforced strictly against vagrancy of children.
(F) The State should establish as many after-care homes as are feasible where the street children are taken care of and are trained to be useful citizen of the Country. The Government should encourage theformation of authentic, secular non-governmental organisation to work along with the Department of Children Welfare to be formed, for eradicating the child vagrancy.
(G) The State should clothe itself with the power to proceed against the parents or guardians who wilfully neglect the welfare of the children or their wards and who encourage them to lead a vagrant, life. Begging in street by children or employing children for begging be made an offence and such provisions should be strictly enforced. The 1st respondent shall take effective steps to implement the above direction. It can consider framing of statutory rules in this . behalf incorporating the above-said directions in exercise of its power under Section 18 of the Child Labor (Prohibition and Regulation) Act, 1986.
These are few of the directions that the State should contemplate giving effect to without delay. Certainly one swallow will not make a summer. The steps should be taken on a war footing to abate the vice of child labor.
24.(i) Now coming to the remedial measures to be taken to prevent child labor, the root cause has been identified to be poverty. The poor parent sends his child to work to earn a pittance for want of any or proper employment avenue for himself. The employer, enticed by the prospect of paying low wages and longer hours of work, engages the child; the child works, without complaint as long as the master wants; there are no Trade Unions to clamour and protect his rights. The Factories Act states that a child may work at the most six hours a day. It means, if he turns out that quantum of work, it can be presumed that he turns out work of normal person. If so, there need not be a distinction in the matter of wages to be paid to him. Equal wages may be notified under the Minimum Wages Act for a child as well as the adult.
(ii) The Labor Legislation enacted in the matters of hours of work, health care, wages, etc., should also be enforced by the State strictly. There should be check by Medical Officers of the health of the working child periodically and the report thereof should be submitted to the Labor Department. If any follow upaction is contemplated, appropriate measures should be taken in that behalf.
(iii) The factory or workplace must be made congenial and hygienic. In places where large number of children are employed, the State should endeavour establishing of a school with the assistance of industrial undertakings in the area to educate the working child as indicated by the Supreme Court.
(iv) The State should consider taking steps to amend the Child Labor (Prohibition and Regulation) Act, 1986 in the manner indicated above to achieve desired effect.
(v) There should be a total ban of employing children below the age of 10 in any employment.
(vi) The State should ensure that in any industry or a factory where children are employed, they enjoy the same benefits as those that are enjoyed by any other industrial workers. In other cases, which is not an industrial establishment or factory, but a shop or commercial or other establishment, the State should ensure that the child laborer gets the notified wages, that they work to only the statutorily fixed hours of work, they are provided with appropriate medical care that they have facility to avail of insurance protection, that they have clean places for dwelling, that they have rest places and that they enjoy hygienic work atmosphere.
(vii) There is a category of child workers who, perhaps, are the worst hit. They are the child laborers employed in the hotels and other catering establishments. The Health Inspectors of the Local Authorities should be empowered to check the working condition of these children and any default on the part of the employer should be reported to the Labor Department for stringent action. Statute should be so amended disabling an employer to earn any renewal of the licence to run the establishment in the event he is guilty of violating any of the provisions of the Labor Law while employing child labor.
(viii) The Government should create a fund to provide social security to the child laborers who are working in unorganised sectors. The fund being created by the Government should be out of the contributions made by the employers in a fixed proportion over and above the salary paid to the child laborers. It would be made available to the children who were once employed but losetheir employment and remain unemployed and are not provided for. Vagrant or unemployed children should also be in a position to earn the benefit of the fund. A strict drive should be conducted by the Government to prevent the vagrancy of children. The Government should see that the Labor Department conducts surprise inspections of all establishments where there is likelihood of children being employed and ascertain whether the Labor enactments and other relevant directions issued on the basis of the order of the Supreme Court are being given effect to. An erring employer should be dealt with deterrently. The Government should maintain a record of these omissions and commissions of the employer and this should be taken note of while granting future renewals of licence for running the establishments or for receiving other statutory benefits. These omissions of the employers should be treated as a black-mark while considering the case for renewal of the licence to run the establishments in future or earning any statutory benefits such as tax holiday, rebate, etc.
(ix) The Government should see that each of the directions issued by the Government on the basis of the Court orders are strictly implemented and the Labor Laws are enforced. A mere inspection by the Labor Department for the sake of satisfying the statistics is not what is intended to be performed by them.
25. The above directions are issued within the frame work of the directions issued by the Supreme Court in M.C. Mehta's case, supra. The Commissioner of Labor be put in-charge of the monitoring of the same and coordinating the working. The Commissioner of Labor should examine the findings of the Karnataka Electricity Board with respect to the establishment referred to in paragraphs Nos.14 to 16 above and take suitable follow-up action, if any, called for.
26. In a recent article published in the periodical 'Time' titled as 'Fertile Minds', it is pointed out that neglecting a baby can produce brain wave patterns that hamper happy feelings. Child abuse can produce heightened anxiety and abnormal stress responses. After analysing various aspects it is stated therein as follows:
'The new insights have begun to infuse new passion into the political debate over early education and day care. There is an urgent need, say child-development experts, forpre-school programmes designed to boost the brain power of youngsters born into impoverished rural and inner-city households. Without such programmes, they warn, the current drive in the United States to curtail welfare costs by pushing mothers with infants and toddlers into the work force may well backfire. 'There is a time scale to brain development, and the most important year is the first, 'notes Frank Newman, President of the Education Commission of the States. By the age of three, a child who is neglected or abused bears marks that, if not indelible, are exceedingly difficult to erase'.
This indeed is a very dear and costly consequence. It is very important that the child is not neglected. It is also equally important that he grows up in a congenial atmosphere. The State should step in to see that the future generation grows up in a healthy atmosphere.
27. The above directions, it is hoped, though may not usher in an Utopian era, will certainly help to ameliorate the misery of an abandoned and forlorn child suffering in anguish either in the street or at the work place. There are stories from rags to riches even these days but the tales of journey from Log House to White House are few and far between. It is ideal to remember that the first faults are theirs that commit them and the second is theirs that permit them. Let the Government act and take appropriate steps to implement all such measures as indicated above.
28. Before parting with the case, I place on record the gratitude of this Court to Sri Ravivarma Kumar, learned Counsel for CACL, who has assisted the Court considerably well in dealing with this case. All the materials made available by him to the Court could not be fully utilised due to various limitations. This Court is also grateful to Ms. Neela Arun for the industrious assistance rendered by her in considering various aspects of the case. I am also grateful to Mr. K.H. Jagadish, learned Government Advocate, who fairly defended the case and also to Mr. Ram Babu, Advocate, who chose to espouse the cause of the children.
The writ petition is disposed of as above. A copy of this order may be forwarded to the 5th respondent for appropriate action as referred to in Para 16.