M.C. MEHTA VERSUS STATE OF TAMIL NADU: JUDGEMENT OFTHE SUPREME COURT OF INDIA. 1991*

(Coram: 2. RANGANATH MISRA, C.J.I. ANDM. H. KANIA. JJ.)

ORDER: -

This petition under Article 32 of the Consti-tution has been brought before this Court by wayof a Public Interest Litigation and is connectedwith the problem of employment of children inmatch factories of Sivakasi in Kamaraj District ofTamil Nadu State. On notice the State has filedits return.

2. Sivakasi has been the traditional centre formanufacture of match boxes and fire works foralmost the whole country and a part of its outputis even exported. From the affidavit of the Stateit appears that as on December 31, 1985, therewere 221 registered match factories in the areaemploying 27,338 workmen of whom 2,941werechildren. We would have been huppy to haveupdated particulars but, for the disposal of thiscase, total figure and the proportion between adultworkmen and children perhaps may be taken asthe foundation.

3. The manufacturing process of matches andfireworks is hazardous one. Judicial notice can betaken of the fact that almost every year, not-withstanding improved techniques and specialcare taken, accidents including fatal cases occur.Working conditions in the match factories aresuch that they involve health hazards in normalcourse and apart from the special risk involved inthe process of manufacturing, the adverse effecton health is a serious problem. Exposure of thetender aged to these hazards requires specialattention.

4. It is a fact that the problem has been inexistence for over half a century, if not earlier,and no appropriate attention has been focussed onit either by the Government or the public. We are,

therefore, thankful to Mr. Mehta for havingbrought this matter before the Court for receivingjudicial consideration.

5. We are of the view that employment ofchildren within the match factories directly con-nected with the manufacturing process upto finalproduction of match sticks or fireworks shouldnot at all be permitted. Article 39(0 of theConstitution provides that'the State should directits policy towards securing that children are givenopportunities and facilities to develop in a healthymanner and in conditions of freedom and dignity,and that childhood and youth are protected againstexploitation and against moral and materialabandonment'.

6. The spirit of the Constitution perhaps is thatchildren should not be employed in factories aschildhood is the formative period and in terms ofArticle 45 they are meant to be subjected to freeand compulsory education until they complete theage of 14 years. The provision of Article 45 in theDirective Principles of State Policy has stillremained a far cry and, though according to thisprovision all children up to the age of 14 years aresupposed to be in school, economic necessityforces grown up children to seek employment.

7. Children can, therefore, be employed in theprocess of packing but packing should be done inan area away from the place of manufacture toavoid exposure to accident. We are also of theview and learned counsel on both sides haveagreed that minimum wage for child labourshould be fixed. We take note of the fact that thetenderhands of the young workers are more suitedto sorting out the manufactured product andprocess it for the purposes of packing. We are,therefore, of the opinion that in consideration oftheir special adaptability at least 60 per cent ofthe prescribed minimum wage for an adultemployee in the factories doing the same job

should be given to them. Our indicating the

Source: x AIR 1991, Supreme Court 417.Wr i t Petn. (C) No.465 of 1986, Dt . 3 l -10-1990.AIR - All India Reporter, C.J.I. - Chief Justice of India, JJ - Justices (Judges of the Higher Courts)

366 JOURNAL OF INDIAN SCHOOL OF POLITICAL ECONOMY APRIL-SEPT 2OO4

are regularly coming to the area. He has told usfurther that four mobile vans are likely to beprovided. The State is directed to take immediatesteps to ensure provision of additional facilitieson this score. Attention may be given to ensureprovision of abasic dietduring the workingperiodand medical care with a view to ensurins soundphysical growth.

11. We are of the opinion that compulsoryinsurance scheme should be provided for. Bothadult and children employees taking into con-sideration the hazardous nature of employment.The State of Tamil Nadu shall, ensure that everyemployee working in these match factories isinsured for a sum of Rs 50,000/- and the InsuranceCorporation, it contacted, should come forwardwith a viable group insurance scheme to cover theemployees in the match factories of Sivakasi area.The premium for the group insurance policyshould be the liability of the employer to meet asa condition of service.

12. Though we are disposing of this petitionwith these directions we are cognisant of theposition that all the problems relating toemployment of children are not covered by thepresent directions. We leave it open either to Mr.Mehta or some other agency to move the Courtas and when necessary for further 0rder.

13. We require that there shall be a committeeto oversee all our directions and it shall consist ofthe District Judge of the area, the District Mag-istrate of Kamaraj district, a public activistoperating in the area, a representative of theemployees and local labour officer. The State ofTamil Nadu is directed to deposit Rs 3,000/ - inthe Registry of this Court within four weeks forbeing given to Mr. Mehta for meeting hisexpenses.

Order accordingly.

minimum wage does not stand in the way ofprescription of a high er rate, if the State is satisfiedthat a higher rate is viable.

8. It is necessary that special facilities forproviding the quality of life of children should beprovided. This would require facility for educa-tion, scope for recreation as also providingopportunity for socialisation. Facility for generaleducation as also job oriented education shouldbe available and the school time should be soadjusted that employment is not affected.

9. We are happy to notice that the learnedcounsel for the State of Tamil Nadu has suggestedthe creation of a Welfare Fund to which theregistered match factories can be asked to con-tribute. Government can decide as to whethercontribution should be at a fixed rate per factoryor made commensurate to the volume of pro-duction. Learned counsel for the State of TamilNadu has agreed that the State would be ready tocontribute a matching grant to the Fund and even,if necessary, a little more funds could be providedso that facilities for education and recreation canbe provided for the children working in thefactories. We direct that the State of Tamil Nadushall take appropriate steps in the matter ofcreating the welfare fund and finalising themethod of contribution and collection thereof sothat the welfare fund may be set up by 1st January,1991. The matching contribution by the State canbe put into the fund by the end of the financialyear 1990-91 so that the consolidated moneywould be available for implementing welfarescheme.

10. Under the Factories Act, there is a statutoryrequirement for providing facilities for recreationand medical attention. The State of Tamil Naduis directed to enforce these two aspects so that thebasic requirements are attended to. We have beentold by learned counsel for the State that mobilemedical vans have been provided by UNICEF and

voL. r6 Nos.2&3

2. M.C. Mehtu v. State of T.N. AIR 1997SUPREME COURT 699

Coram: 3 KULDIP SINGH. B.L. HANSARIAAND S.B. MAJMUDAR. JJ.

Judgement

HANSARIA, J. :- 'I am the child,All the world waits for my coming.All the earth watches with interest to see what Ishall become.Civilization hangs in the balance.For what I am, the world of tomorrow will be.I am the child.You hold in your hand my destiny.You determine, largely, whether I shall succeedor fail,Give me, I pray you, these things that make forhappiness.Train me, I beg you, that I may be a blessing tothe world'.

Mamie Gene Cole

It may be that the aforesaid appeal lies at theback of the saying that 'child is the father of man'.To enable fathering of a valiant and vibrant man,the child must be groomed well in the formativeyears of his life. He must receive education,acquire knowledge of man and materials, andblossom in such an atmosphere that on reachingage, he is found to be a man with a mission, a manwho matters so far as the societv is concerned.

2. Our Constitution makers, wise and saga-cious as they were, had known that India of theirvision would not be a reality if the children of thecountry are not nurtured and educated. For this,their exploitation by different profit makers fortheir personal gain had to be first indicted. It isthis need. which has found manifestation inArticle 24, whrch is one of the two provisions inPart IV of our Constitution on the fundamentalright against exploitation. The framers wereaware that this prohibition alone would not permitthe child to contribute its mite to the nation-building work unless it receives at least basic

t l993l I SCC 645 : [1993, AIR SCw 863],SCC - Supreme Court Cases.

M,C. MEHTA V. STATE OF TAMIL NADU

education. Article 45 was therefore inserted in ourparamount parchment casting a duty on the Stateto endeavour to provide free and compulsoryeducation to children, (It is known that thisprovision in Part IV of our Constitution is, afterthe decision by a Constitution bench of this Courtin Unni Krishnan, has acquired the status of afundamental right). Our Constitution containssome other provisions also to which we shalladvert later, desiring that a child must be givenopportunity and facility to develop in a healthymanner.

3. Despite the above, the stark reality it that inour country like many others, children areexploited lot. Child labour is a big problem andhas remained intractable, even after about 50years of our having become independent, despitevarious legislative enactments, to which we shallrefer in detail subsequently, prohibitingemployment of a child in a number of occupationsand avocations.

3,A.. In our country, Sivakasi was one taken asthe worst offender in the matter of violatingprohibition of employing child labour. As thesituation there had became intolerable, the publicspirited lawyer, Shri M.C. Mehta, thought itnecessary to invoke this court's power underArticle 32, as after all the fundamental right of thechildren guaranteed by Article 24 was beinggrossly violated. He, therefore, filed this petition.It once came to be disposed of by an order ofOctober 31, 1990 by noting that in Sivakasi, ason December 3 I , 1985, there were 22I registeredmatch factories employing 27,338 workmen ofwhom 2,941were children. The Court then notedthat the manufacturing process of matches andfireworks (for the manufacture of which alsoSivakasi is a traditional center) is hazardous,giving rise to accidents including fatal cases. So,keeping in view the provisions contained in

Articles 39(0 and 45 of the Constitution, it gavecertain directions as to how the quality of life ofchildren employed in the factories could beimproved. The Court also felt the need of con-stituting a committee to oversee the directionsgiven.

4. Subsequently, suo motu cognisance wastaken in the present case itself when news aboutan 'unfortunate accident', in one of the Sivakasicracker factories was published. At the directionof the Court, Tamil Nadu Government filed adetailed counter stating, inter alia, that number ofpersons to die was 39. The Court gave certaindirections regarding the payment of compensa-tion, and thought that an advocate committeeshould visit the area and make a comprehensivereportrelating to the various aspects of the matter,as mentioned in the order of August 14,1991. Thecommittee was to consist of (1) Shri R.K, Jain, asenior advocate; (2) Ms. Indira Jaisingh, anothersenior advocate; and (3) Shri K.C. Dua, Advocate.

5. The committee has done a commendablejob. It submitted its report on I l- I 1-91 containingmany recommendations, the summary of whichis to be found at pages 24-25 of the report, readingas below :-

(a) The State of Tamil Nadu should be directedto ensure that children are not employed in fire-works factories.

(b) The children employed in the match fac-tories for packing purposes must work in separatepremises for packing.

(c) Employers should not be permitted to takework from the children for more than six hours aday.

(d) Proper transport facilities should be pro-vided by the employers and State Government fortravelling of the children from their homes to theirwork places and back.

JOURNAL OF INDIAN SCHOOL OF POLITICAL ECONOMY APRIL-SEPT 2OO4

(e) Facilities for recreation, socialisation andeducation should be provided either in the factoryor close to the factory.

(f) Employers should make arrangements forproviding basic diets for the children and, in casethey fail to do so, the Government may be directedto provide for basic diet - one meal a day pro-gramme of the State of Tamil Nadu for schoolchildren may be extended to the child worker.

(g) piece-rate wages should be abolished andpayment should be made on monthly basis.Wages should be commensurate to the work doneby the children.

(h) All the workers working in the industry,whether in registered factories or in unregisteredfactories, whether in cottage industry or on con-tract basis, should be brought under the InsuranceScheme.

(i) Welfare Fund - For Sivakasi area, insteadof the present committee, a committee should beheaded by a retired High Court Judge or a personof equal status with two social workers, whoshould be answerable either to this Hon'ble Courtor to the High Court, as may be directed by thisHon'ble Court. Employers should be directed todeposit Rs 2/- per month per worker towardswelfare fund, and the State should be directed togive the matching contribution. The employers ofall the industries, whether it is registered orunregistered, whether it is cottage industry or oncontract basis, to deposit Rs 2i- per month perworker.

0) e National Commission for children'swelfare should be set up to prepare a scheme forchild labour abolition in a phased manner. Sucha Commission should be answerable to thisHon'ble Court directly and should report to thisHon'ble Court at periodical intervals about theprogress.

voL. r6 Nos.2&3

6. We put on record our appreciation for thecommendable work done bv the committee.

7. There is an affidavit of the President of theAll India Chamber of Match Industries, Sivakasi,on record which contains its reaction to therecommendation of Committee. It is not neces-sary to deal with this affidavit. Objection to theCommittee's recommendations was also filed bythe President of Tamil Nadu Fireworks andAmorces Manufactures Association. We do notpropose to traverse this affidavit as well. Both ofthese contain general statements and denial ofwhat was found by the Committee.

8. For the sake of completeness, it may bestated that there are on record various reportsrelating to working conditions, etc., of childlabour at Sivakasi. First of these reports is of aCommittee which had been constituted by theLabour Department by the Tamil Nadu Govern-ment, vide rts GO MS. dated 19-3-84, under theChairmanship of Thiru N. Haribhaskar. Thereport of the Committee is voluminous, as it runsinto 181 pages and contains a number of annex-ures. The Committee reviewed the workingconditions and measures taken to mitigate thesufferings of the child labour and has madevarious recommendations in Chapter XI of itsreport. We also have a work of Collector ofKamarajar District titled Integrated Project forthe Betterment of Living Conditions of Womenand Children Employed in Match Factories inSivakasi area. This work is of October 1985.There is yet another report dealing with the causesand circumstances of the fire explosions whichhad taken place on 12-7-91 at Dawn AmorcesFireworks Industries and it contains remedialmeasures. The final report relating to SivakasiWorkers is of 30th March, 1993 this relates toelimination of child labour in the match andfirework industries in Tamil Nadu. The repre-sentatives of the Departments of Labour andEmployment, Social Welfare and Education hadprepared this report in collaboration with UNI-CEF and it speaks of 'A proposed strategyframework'.

M.C. MEHTA V. STATE OF TAMIL NADU

9. The Government of India as well has beenapprising itself about the various aspects relatingto child labour in various industries. A 16 membercommittee had come to be set up by a resolutionof the Labour Ministry dated 6/7 February, 1979under the chairmanship of Shri M. S. Gurupa-daswamy. The Committee submitted its report on29-12-79 and made various recommendationswhich are contained in Chapter V. The LabourMinistry, had subsequently surveyed the problemof child labour departmentally as a part of theobservance of International Child Year Pro-gramme. The report (dated 24-6-81) mentionsabout the survey conducted in certain orgainsedand unorganised sectors of industries. It containsan account of employment, wages and earnings,working conditions and welfare activities relatingto child labour both in organised and unorganisedsectors. Chapter III of the report contains theconclusions, of which what has been stated in para4.5 deserves to be noted. The same is as below:-

Extreme poverty, lack of opportunity forgainful employment and intermittancy of income,and low standards of living are the main reasonsfor the wide prevalence of child labour. Thoughit is possible to identify child labour in theorganised sector, which forms a minuscule of thetotal child labour, the problem relates mainly tothe unorganised sector where utmost attentionneeds to be paid. The problem is universal but inour case it is more crucial.

Magnitude of the Problem

10. Sivakasi has ceased to be the only centreemploying child labour. The malady is no longerconfined to that place.

11. A write-up in Indian Express of25-10-1996 has described Bhavnagar as anotherSivakasi in making, as that town of about fourlakh population has at least 13,000 childrenemployed in 300 different industries. The prob-lem of child labour in India has indeed spread itsfang far and wide. This would be apparent fromthe chart which finds place in the commendablework of social authropologist of United Nations

370

Volunteer, Neera Burra, published under the titleBorn to Work: Child Labour in India, as at pages

APRIL-SEPT 2OO4

XXII to XXIV of the book. It is useful to extractthat chart. It is as below:-

JOURNAL OF INDIAN SCHOOL OF POLITICAL ECONOMY

IndustryWorkers

0 )

Location

(2)

Total Workers Child Workers Percentage ofChild Workers

to Total(s)(4)(3)

Slate pencilSlateDiamond-cuttingAgate-cuttingGem polishing

Power loomCotton hosieryCarpet weavingCarpet weavingCarpet weaving

Lock-making-- do --

PotteryBrass Ware-- do --

MatchGlassSilk and silk productsTextileKnives

HandicraftsSilk weavingBrocade and Zai industry

Brick-kilns

BeediCircus industry

Handloom and HandicraftIndustry

Mandsaur, Madhya PradeshMarkapur, Andhra PradeshSurat, GujaratCambay, GujaratJaipur, Rajasthan

Bhiwandi, MaharashtraTiruppur, Tamil NaduMirzapur-B hadohi, Uttar PradeshJammu and KashmirRajasthan

Aligarh,Uttar pradeshKhurja, Uttar PradeshMoradabad,Uttar Pradesh

Sivakasi, Tamil NaduFirozabad, Uttar PradeshVaranasi, Uttar PradeshVaranasi, Uttar PradeshRampur, Uttar Pradesh

Jammu and KashmirBiharVaranasi and other centres, Uttar Pra-deshWest Bengal

India40 major circuses

Jammu and Kashmir

12,00015,000

I,00,00030,00060,000

3,00,00030,000

2,00,000app.4,00,000

30,000

80,00090,00020,000

l,50,000

not known2,00,000

I 1,9003,5r2

not known

90,000not knownnot known

not known

3,275_,000

I, 16,000

I,000app.3,750

15,000not known

13,600

15,0008,000

1,50,000I,00,000

12,000

7,00010,000

5,0040,00045,000

45,00050,0004,409I , 1 0 83,000

26,47810,000

3,00,000

35,000

3,27_5,00

28,348

8 .325.015 .0

22.6

5 .01 1 aJ J . . ]

75.025.040.0

8 .7l l . l25.025.630.6

25.037.0

1i '

29.42

10.012 per cent of

the entirelabour strengh

25.0

(Source material omitted).

11A. According to the 1971 Census 4.66 percent of the child population in India consisted ofworking children. In absolute numbers; the 197 |Census put the figure at 10.7 million workingchildren. On the basis of National Sample Survey27th round 11972-13l the number of workingchildren as on March, 1973 in the age group of5-14 years may be estimated at 16.3 mill ion and

based on the 32nd round at 16.25 million on lstMarch, I978 (14.68 mill ion rural and 1.57 mill ionurban). According to 1981 Census the figure hasgone to 11.16 mill ion working children. As esti-mated by the Planning Commission on lstMarch,1983, there would be 15.70 mill ion childlabourers, (14.03 rural and L67 urban) in the agegroup of l0-14 years. The National Sample Sur-

voL. r6 Nos.2&3

vey Organisation estimates the number at 17.58mill ion in 1985. None of the official estimatesincluded child workers in the unorganised sector,and therefore, are obviously gross underesti-mates. Estimates from vari ous non- governmentalsources as to the actual number of workingchildren range from 44 million to 100 million.

(Figures of l98l Census have been quotedbecause the report relating to 1991 Census has notyet been made public. It is understood that thesame is under publication).

12. The aforesaid profile shows that childlabour by now is an all-India evil, though itsacuteness differs from area to area. So, without aconcerted effort, both of the Central Governmentand various State Governments, this ignominywould not get wiped out. We have, therefore,thought it fit to travel beyond the confines ofSivakasi to which place this petition initiallyrelated. In our view, it would be more appropriateto deal with the issue in wider spectrum andbroader perspective taking it as a national prob-lem and not appertaining to any one region of thecountry. So, we would address ourselves as tohow we can, and are required to, tackle theproblem of child labour, solution of which isnecessary to build a better India.

Constitution Call

13. To accomplish the aforesaid task, we havefirst to note the constitutional mandate and callon the subject, which are contained in the fol-lowing articles:

24. Prohibition of employment of children infactories, etc. -

No child below the age of fourteen years shallbe employed to work in any factory or mine orengaged in any other hazardous employment.

39(e). that the health and strength of workers,men and women, and the tender age of childrenare not abused and that citizens are not forcedby economic necessity to enter avocationsunsuited to their age or strength;

M.C. MEHTA V, STATE OF TAMIL NADU

39(0. that children are given opportunities andfacilities to develop in a healthy manner andin conditions of freedom and dignity, and thatchildhood and youth are protected againstexploitation and against moral and materialabandonment.

41. Right to work, to education and to publicassistance in certain cases -

The State shall, within the limits of its eco-nomic capacity and development, makeeffective provision for securing the right towork, to education and to public assistance incases of unemployment, old age, sickness anddisablement, and in other cases of undeservedwant.

45. Provision for free and compulsory educa-tion for children. -

The State shall endeavour to provide, within aperiod of ten years from the commencementof this Constitution, for free and compulsoryeducation for all children until they completethe age of fourteen years.

47. Duty of the State to raise the level ofnutrition and the standard of living and toimprove public health -

The State shall regard the raising of the levelof nutrition and the standard of living of itspeople and the improvement of public healthas among its primary duties and, in particular,the State shall endeavour to bring about pro-hibit ion of the consumption, except formedicinal purposes, of intoxicating drinks andof drugs which are injurious to health.

14. Of the aforesaid provisions, the one findingplace in Article 24has been a fundamental rightever since 28th January, 1950. Article 45 too hasbeen raised to high pedestal by Unni Krishnan,

11993 AIR SCW 8631 which was decided on 4thFebruary, 1993. Though other articles are part ofdirective principles, these are fundamental in thegovernance of our country and it is the duty of allthe organs of the State (a Ia Article 3l) to applythese principles. Judiciary, being also one of the

372

three principal organs of the State, has to keep thesame in mind when called upon to decide mattersof great public importance. Abolition of childlabour is definitely a matter of great public con-cern and significance.

International Commitment

15. It would be apposite to apprise ourselvesalso about our commitment to world community.For the case at hand, it would be enough to notethat India has accepted the Convention on theRights of the Child, which was concluded by theUN General Assembly on 20th November, 1989.This Convention affirms that children's rightrequire special protection and it aims, not only toprovide such protection but also to ensure thecontinuous improvement in the situation of chil-dren all over the world, as well as their develop-ment and education in conditions of peace andsecurity. Thus, the Convention not only protectsthe child's civil and polit ical rights, but alsoextends protection to child's economic, social,cultural and humanitarian riehts.

16. The Government of India deposited itsinstrument of accession to the above-mentionedConventions on December 11, 1992 with theUnited Nation's Secretary-General. That instru-ment contains the following declaration. 'While

fully subscribing to the objectives and purposesof the Convention, realising that certain of therights of the child, namely those pertaining to theeconomic, social and cultural rights can only beprogressively implemented in the developingcountries, subject to the extent of availableresources and within the framework of interna-tional co-operation; recognision that the child hasto be protected from exploitation of all formsincluding economic exploitation; noting that forseveral reasons children of different ages do workin India; having prescribed minimum ages foremployment in hazardous occupations and incertain other areas; having made regulatory pro-visions regarding hours and conditions ofemployment; and being aware that it is not

]OURNAL OF INDIAN SCHOOL OF POLITICAL ECONOMY APRIL-SEPT 2OO4

practical immediately to prescribe minimum agesfor admission to each and every area of employ-ment in India, the Government of India under-takes to take measures to progressivelyimplement the provisions of Article 32,particularly Paragraph 2(a), in accordance withits national legislation and relevant internationalinstruments to which it, is a State Partv'.

17. Article 32 of which mention has been madein the instrument of accession reads as below:

1. State Parties recognise the right of the childto be protected from economic exploitationand from performing any work that is likely tobe hazardous or to interfere with the child'seducation, or to be harmful to the child's healthor physical, mental, spiritual, moral or socialdevelopment.2. State Parties shall take legislative, admin-istrative, social and educational measures toensure the implementation of the presentarticle. To this end, and having regard to therelevant provisions of other internationalinstruments, State Parties shall in particular:

(a) Provide for a minimum age or minimumages for admission to employment;(b) Provide for appropriate regulation of thehours and conditions of employment;(c) Provide for appropriate penalties or othersanctions to ensure the effective enforce-ment of the present article.

Statutory Provisions

18. We may now note as to how the problemof child labour has been viewed by our policymakers and what efforts have been made to takecare of this evil. We have shown our concern inthis sphere ever since the International LabourOrganisation, set up in 1919 under the League ofNations, had felt that there should be internationalguidelines by which the employment of childrenunder a certain age could be regulated in industrialundertakings. It, therefore, suggested that theminimum age of work be 12 years. The samerequiredratification by the Government of British

voL. r6 Nos.2&3

India; and during the Legislative Assemblydebates, the question of raising the minimum agefrom nine to 12 years has created a furor. TheHon'ble Sir Thomas Holland had said in theLegislative Assembly in Febru ary I92l that if theminimum age were raised, the same would upsetthe organisational set-up of most textile millswhich were the principal employees of children.On the other hand, there were those who felt thatthe answer to the problem lay in compulsoryprimary education. The House ultimately wasdivided with 32 members voting for raising theminimum age to 12 and 40 voting against it. TheAssembly, therefore, recommended to theGovernor-General-in-Council that the DraftConvention should be ratified with certainobservations.

19. May it be stated that the InternationalLabour Organisation has been playing animportant role in the process of gradual elimi-nation of child labour and to protect children fromindustrial exploitation. It has focussed five mainissues:-

1. Prohibit ion of child labour.2. Protecting child labourers at work.3. Attacking the basic causes of child labour.4. Helping children to adopt to future work.5. Protecting the children of working parents.

Til l now 18 Conventions and 16 recom-mendations have been adopted by the ILO in theinterest of working children all over the world.

20. To continue our narration of steps takenhere, a Royal Commission on Labour came to beestablishedin 1929 to inquire into various mattersrelating to labour in this country. The report cameto be finalised in 1931. It brought to l ight manyinequities and shocking conditions under whichchildren worked. The Commission had examinedthe conditions of child labour in different indus-tries and had found that children had been obligedto work any number of hours per day as requiredby their masters. It was also found that they weresubject to corporal punishment. The Commissionhad felt great concern at the placing of children

M,C. MEHTA V. STATE OF TAMIL NADU 373

by parents to employers in return for small sumsof money; and as this system was found to beindefensible, it recommended that any bondplacing a child should be regarded as void.

2l.The recommendations of the Commissioncame to be discussed in the Legislative Assemblyand the Children (Pledging of Labour) Act, 1933came to be passed, which may be said to be thefirst statutory enactment dealing with childlabour. Many statutes came to be passed there-after. As on today, the following legislativeenactments are in force prohibiting employmentof child labour in different occupations:

(i) Section 67 of the Factories Act. 1948:'Prohibition of employment of youngchildren:-No child who has not completed his fourteenthyear shall be required or allowed to work inany factory'.

(ii) Section 24 of the Plantation Labour Act,1 9 5 1 :'No child who has not completed his twelfthyear shall be required or allowed to work inany plantation'.

(i i i) Section 109 of theMerchant ShippingAct,1 9 5 1 ;"No person under fifteen years of age shall beengaged or carried to sea to work in anycapacity in any ship, except-

(a) in a school ship, or training ship, inaccordance with the prescribed conditions;or(b) in a ship in which all persons employedare members of one family; or(c) in a home-trade ship of less than twohundred tons gross; or(d) where such person is to be employed onnominal wages and will be in the charge ofhis father or other adult near male relative'.

(iv) Section 45 of the Mines Act, 1952:-

374 JOURNAL OF INDIAN SCHOOL OF POLITICAL ECONOMY APRIL.SEPT 2OO4

22.The aforesaid shows that the legislature hasstrongly desired prohibition of child labour. Act61 of 1986 is, exfacie, a bold step. The provisionsof this Act, other than Part III, came into force atonce and for Part III to come into force, anotification by the Central Government is visu-alised by Section l(3), which notif ication cov-ering all classes of establishments throughout theterritory of India was issued on May 26, 1993.

23. Section 3 of this Act has prohibitedemployment of children in certain occupationsand processes. Part A of the Schedule to the Actcontains the names of the occupations in whichno child can be employed or permitted to work;and in Para B names of some processes have beenmentioned in which no child can be employed orpermitted to work. It would be profitable to quoteParts A and B of the Schedule which read asbelow:

Part AOccupationsAny occupation connected with -

( 1) transport of passengers, goods or mails byrailway;

(2) cinder picking, clearing of an ash pit orbuilding operation in the railway premises;

(3) work in a catering establishment at arailway station involving the movement of avendor or any other employee of the establish-ment from one platform to another or into or outof a moving train;

(4) work relating to the construction of railwaystation or with any other work where such workis done in close proximity to or between therailway lines; and

(5) a port authority within the limits of anyport.

Part B:Processes(1) Bidi-making.(2) Carpet-weaving.(3) Cement manufacture, including bagging ofcement.

( 1) 'No child shall be employed in any mine,nor shall nay child be allowed to be presentin any part of a mine which is below groundor in any part (open cast working) in whichany mining operation is being carried on.(2) After such date as the Central Govern-ment may, by notification in the OfficialGazette, appoint in this behalf, no child shallbe allowed to be present in any part of a mineabove ground where any operation con-nected with or incidental to any miningoperation is being carried on'.

(v) Section 2l of the MotorTransportWorkersAct , 1961: -'No child shall be required or allowed to workin any capacity in any motor transport under-taking' .

(vi) Section 3 of the Apprentices Act, 1961:-

Qualifications for being engaged as anapprentice:- A person shall not be qualified forbeing engaged as an apprentice to undergoapprenticeship training in any designatedtrade, unless he-

(a) is not less than fourteen years of age, and(b) satisfies such standards of education andphysical fitness as may be prescribed:

Provided that different standards may be pre-scribed in relation to apprenticeship trainingin different designated trades and for differentcategories of apprentices.

(vii) Section 24 of Beedi and Cigar Workers(Conditions of Employment) Act, 1966:-'Prohibition of employment of children - Nochild shall be required or allowed to work inany industrial premises'.

(viii) Child Labour (Prohibition and Regu-lat ion) Act, 1986 (Act 61 of 1986).

(ix) Shops and Commercial EstablishmentActs under different nomenclatures in variousStates.

voL. 16 NOS.2&3

(4) Cloth printing, dyeing and weaving.(5) Manufacture of matches, explosives andfire-works.(6) Mica-cutting and splitt ing.(7) Shellac manufacture.(8) Soap manufacture.(9) Tanning(10) Wool-c leaning.(11) Building and construction industry.

24. Section 14 of the Act has provided forpunishment upto 1 year (minimum being 3months) or with fine upto Rs 20,000/- (minimum

being ten thousand) or with both, to one whoemploys or permits any child to work in contra-vention of provisions in Section 3. Even so, it iscommon experience that child labour continuesto be employed. As to why this has happened,despite the Act of 1986, has come to be discussedby Neera Burra, in her afore-mentioned book atpages 246 to 250 of the 1995 edition. It has beenfirst pointed out that the occupations and pro-cesses dealt by the Act are the same about whichthe repealed statute (Employment of ChildrenAct, 1938) had mentioned, except that in Part B,one process has been added the same being'building and construction industry'. Accordingto Neera, there are a number of loopholes in theAct which have made it 'completely ineffectiveinstrument for the removal of children workingin industry' . One of the clear loopholes mentionedis that children can continue to work if they are apart of family of labour. It is not necessary for ourpurpose to go into other infirmities pointed out.Nonetheless, it deserves to be pointed out that theAct does not use the word 'hazardous' anywhere,the implication of which is the children maycontinue to work in those processes not involvingchemicals. Neera had tried to show howimpracticable and unrealistic it is to draw adistinction between hazardous and non-hazardous processes in a particular industry. Thesuggestion given is that what is required is to listthe whole industry as banned for child labour,which would make the task of enforcement sim-pler and strategies of evasion more difficult.

M.C, MEHTA V, STATE OF TAMIL NADU

Failure : Causes

25. We have, therefore, to see as to why it isthat child labour has continued, despite theaforesaid statutory enactments. This has been asubject of study by a good number of authors. Itwould be enough to note what has been pointedout in Indian Child Labour by Dr. J. C. Kulsh-reshtra. This aspect has been dealt in Chapter II.According to the author, the causes of failure are: (1) poverty; (2) low wages of the adult; (3)unemployment; (4) absence of schemes forfamily allowance; (5) migration to urban areas;(6) large families; (7) children being cheaplyavailable; (8) non-existence of provisions forcompulsory education; (9) illiteracy and igno-rance of parents; and (10) traditional attitudes.Nazir Ahmad Shah has also expressed similarviews in his book Child Labour in India. In thearricle ar pages 65 to 68 of 1993 (3) SCJ (JournalSection) titled 'Causes of the exploitation of childlabour in India', Dr. Amar Singh and Raghu-vinder Singh, who are attached to HimachalPradesh Universitv. have taken the same views.

26. Of the aforesaid causes, it seems to us thatpoverty is the basic reason which compels parentsof a child, despite their unwill ingness, to get itemployed. The Survey Report of the Ministry ofLabour (supra) had also so stated. Otherwise, noparents, specially no mother, would like that atender aged child should toil in a factory in adifficult condition, instead of it enjoying itschildhood at home under the paternal gaze.

What to Do ?

27.Itmay be that the problem would be takencare of to some extent by insisting on compulsoryeducation. Indeed, Neera thinks that if there is atall a blueprint for tackling the problem of childlabour, it is education. Even if i t were to be so,the child of a poor parent would not receiveeducation, if per force it has to earn to make thefamily meet both the ends. Therefore, unless thefamily is assured of income aliunde, problem ofchild labour would hardly get solved;and it is this

376

vital question which has remained almost unat-tended. We are, however, of the view that till analternative income is assured to the family, thequestion of abolit ion of child labour would reallyremain a wil l-o-the wisp. Now, if employment ofchild below that age of 14 is a constitutionalindication insofar as work in any factory or mineor engagement in other hazardous work, and if ithas to be seen that all children are given educationti l l the age of 14 years in view of this being afundamental right now, and if the wish embodiedin Article 39(e) that the tender age of children isnot abused and citizens are not forced by eco-nomic necessity to enter avocation unsuited totheir age, and if children are to be givenopportunities and facilities to develop in a healthymanner and childhood is to be protected againstexploitations as visualised by Article 39(f, itseems to us that the least we ought to do is see tothe fulfilment of legislative intendment behindenactment of the Child Labour (Prohibition andRegulation ) Act, 1986. Taking guidance there-from, we are of the view that the offendingemployer must be asked to pay compensation forevery child employed in contravention of theprovisions of the Act a sum of Rs 20,0001-; andthe Inspector, whose appointment is visualised bySection 17 to secure compliance with the provi-sions of the Act, should do this job. The inspectorsappointed under Section 17 would see that foreach child employed in violation of the provisionsof the Act, the concerned employer pays Rs20,000/- which sum could be deposited in a fundto be known as Child Labour Rehabilitation-cum-Welfare Fund. The liability of the employerwould not cease even if he would desire todisengage the child presently employed. It wouldperhaps be appropriate to have such a fund districtwise or area wise. The fund so generated shallform corpus whose income shall be used only forthe concerned child. The quantum could be theincome earned on the corpus deposited qua thechild. To generate greater income, fund can bedeposited in high yielding scheme of anynationalised bank or other public body.

JOURNAL OF INDIAN SCHOOL OF POLITICAL ECONOMY APRIL.SEPT 2OO4

28. As the aforesaid income could not beenough to dissuade the parent/guardian to seekemployment of the child, the State owes a duty tocome forward to discharge its obligation in thisregard. After all, the aforementioned constitu-tional provision has to be implemented by theappropriate Government, which expression hasbeen defined in Section 2(i) of the Act to mean,in relation to establishment under the control ofthe Central Government or a railway adminis-tration or a major port or a mine or oil field, theCentral Government, and in all other cases theState Government.

29. Now, strictly speaking, a strong case existsto invoke the aid of an Article 4l of the Consti-tution regarding the right to work and to givemeaning to what has been provided in Article 47relating to raising of standard of living of thepopulation, and Articles 39(e) and (f) as to non-abuse of tender age of children and givingopportunities and facilities to them to develop inhealthy manner, for asking the State to see that anadult member of the family, whose child is inemployment in a factory or a mine or in otherhazardous work, gets a job anywhere, in lieu ofthe child. This would also see the fulfilment ofthe wish contained in Article 4l after about halfa century of its being in the paramount parchment,like primary education desired by Article 45,having been given the status of fundamental rightby the decision in Unni Krishnan, [993, AIRSCW 8631. We are, however, not asking the Stateat this stage to ensure alternative employment inevery case covered by Article 24, as Article 41specks about right to work 'within the limits ofthe economic capacity and development of theState'. The very large number of child-labour inthe aforesaid occupations would require giving ofjobs to a very large number of adults, if we wereto ask the appropriate Government to assurealternative employment in every case, whichwould strain the resources of the State, in case itwould not have been above to secure job for anadult in a private sector establishment or, for thatmatter, in a public sector organisation. We, are

voL. t6 Nos.2&3

not issuing any direction to do so presently.Instead, we leave the matter to be sorted out bythe appropriate Government. In those cases whereit would not be possible to provide job asabove-mentioned, the appropriate Governmentwould, as its contribution/grant, deposit in theaforesaid fund a sum of Rs 5,000/- for each childemployed in a factory or mine or in any otherhazardous employment.

30. The aforesaid would either see an adult(whose name would be suggested by the parent /guardian of the concerned child) getting a job inlieu of the child, ordepositof a sum of Rs 25,000/-in the Child Labour Rehabilitation-cum-WelfareFund.In case of getting employment for an adult,the parent/guardian shall have to withdraw hischild from the job. Even if no employment wouldbe provided, the parenVguardian shall have to seethat his child is spared from the requirement to dothe job, as an alternative source of income wouldhave become available to him.

31. To give shape to the aforesaid directions,we require the concerned States to do thefollowing:-(1) A survey would be made of the aforesaid typeof child labour which would be completed withinsix month from today.(2) To start with, work could be taken upregarding those employments which have beenmentioned in Article 24, which may be regardedas core sector, to determine which the hazardousaspect of the employment would be taken ascriterion. The most hazardous employment mayrank first in priority, to be followed by compar-atively less hazardours and so on. It may bementioned here that the National Child LabourPolicy, as announced by the Government of India,has already identified some industries for priorityaction, and the industries so identified are asbelow:-The match industry in Sivakasi, Tamil Nadu.The diamond polishing industry in Surat, Gujarat.The precious stone polishing industry in Jaipur,Rajasthan.

M.C. MEHTA V. STATE OF TAMIL NADU

The glass industry in Firozabad, Uttar Pradesh.

The brass-ware industry in Moradabad, UttarPradesh.

The hand-made carpet industry in Mirzapur-

Bhadohi, 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 ourdirection could be dovetailed to other assured

employment. On this being done, it is apparentthat our direction would not require generation ofmuch additional employment.

(4) The employment so given could as well be the

industry where the child is employed - a public

undertaking, and would be manual in nature

inasmuch as the child in question must be engaged

in doing manual work. The undertaking chosenfor employment shall be one which is nearest tothe place of residence of the family.

(5) In those cases where alternative employmentwould not be made available as aforesaid, theparent/guardian of the concerned child would bepaid 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 ifthe child would not be sent by the parentlguardian

for education.

(6) On discontinuation of the employment of thechild, his education would be assured in suitableinstitution with a view to make it a better citizen.

It may be pointed out that Article 45 mandates

compulsory education for all children until theycomplete the age of l4 year; it is also required tobe free. It would be the duty of the Inspectors tosee that this call of the Constitution is carried out.

378

(7) A district could be the unit of collection sothat the executive head of the district keeps awatchful eye on the work of the Inspectors.Further, in view of the magnitude of the task, aseparate cell in the Labour Department of theappropriate Government would be created.Monitoring of the scheme would also be neces-sary and the Secretary of the Department couldperhaps do this work. Overall monitoring by theMinistry of Labour, Government of India, wouldbe beneficial and worthwhile.

(8) The Secretary to the Ministry of Labour,Government of India would apprise this Courtwithin one year of today about the compliance ofaforesaid directions. If the petitioner would needany further or other order in the light of thecompliance report, it would be open to him to doso.

(9) We should also like to observe that on thedirections given being carried out, penal provi-sions contained in the affronted 1986 Act wouldbe used where employment of child labour,prohibited by the Act, would be found.

(10) Insofar as the non-hazardous jobs are con-cerned, the Inspector shall have to see that theworking hours of the child are not more than fourto six hours a day and it receives education at leastfor two hours each day. It would also be seen thatthe entire cost of education is borne bv theemployer.

32. The task is big, but not as to prove eitherunwieldy or burdensome. The financial implica-tion would be such as to prove a damper, becausethe money after all would be used to build up a

JOURNAL OF INDIAN SCHOOL OF POLITICAL ECONOMY APRIL.SEPT 2OO4

better India. In this context, it is worth pointingout that poverty as such has not stood in the wayof other developing countries from taking care ofchild labour. It has been pointed out by MyronWeiner (at page 4 of l99l Edition) of his bookThe Child and the State in India, that India is asignificant exception to the global trend towardthe removal of children from the labour force andthe establishment of compulsory, universal pri-mary school education, as many countries ofAfrica, like Zambia, Ghana, Ivory Coast, Libya,Zimbabwe, with income levels lower than India,have done better in these matters. This shows thatwhat has caused the problem of child labour topersist here is really not dearth of resources, butlack of real zeal. Let this not continue. Let us allput our head and efforts together and assist thechild for its good and greater good of the country.

33. The writ petition is disposed of accord-ingly.

34. We part with the fond hope that the closingyears of the twentieth century would see uskeeping the promise made to our children by ourConstitution about half-a-century ago. Let thechild of twenty-first century find himself into that'heaven of freedom of which our poet laureateRabindranath Tagore has spoken in Gitanjali.

35. Let acopy of this judgment be sent to ChiefSecretaries of all the State Governments andUnion Territories; so also to the Secretary, Min-istry of Labour, Government of India for theirinformation and doins the needful.

Order accordingly.

voL. r6 Nos.2&3

In brief, the position regarding compliance ofthe directions of the Supreme Court of India ascontained in thejudgement ofDecember 10, 1996is as under:x The first phase of survey has been completed

in all the State Governments and UnionTerritories except in the State of Nagaland.

* Most of the State Governments hadappointed Inspectors under Section l7 of the

Child Labour (Prohibition and Regulation)Act 1986 and wherever it was considerednecessary, officers from other Departmentswere also mobilised, pooled and notified assuch so that the directions of the Hon'bleCourt could be fully complied with.

* On the basis of the information received sofar, it is seen that in the State Governmentsand Union Territory Administrations ofAndhra Pradesh, Goa, Harayana, Karnataka,Kerala, Madhya Pradesh, Maharashtra,

Orissa, Punjab, Tamil Nadu, Tripura, UttarPradesh and West Bengal recovery noticeshave already been issued to the offendingemployers for collection of compensationamounting @Rs 20,000 per child employedin contravention of the provisions of the Act.The State Governments and Union Territo-ries Administrations of Andaman andNicobar Island, Dadra and Nagar Haveli,

Chandigarh, Daman and Diu, Lakshadweep,Mizoram, Pondicherry and Sikkim havereported that it is not necessary to issue suchnotices as no child labour has been found tohave been employed in hazardous occupa-tions. Recovery notices in the State ofMeghalaya are in the process of beingserved.

M.C. MEHTA V. STATE OF TAMIL NADU

POSITION ON THE IMPLEMENTATION OF THEDIRECTIONS OF THE SUPREME COURT OF INDIA

WRIT PETITION (CIVIL) NO. 465/1986$

The State Governments, where employmentof child labour in hazardous occupations hasbeen found, have already initiated necessaryaction for the constitution of the ChildLabour Rehabilitation-cum-Welfare Fundsat the district level in accordance with theguidelines circulated by the Ministry ofLabour. While in some districts, funds havealready been constituted, in others the pro-cess is underway.According to information received so far, theamount of compensation received from theoffending employers has been as under:(i) Andhra Pradesh Rs 40,000(ii) Haryana Rs 80,000(iii) Karnataka Rs 60,000(iv) Madhya Pradesh Rs 20,000(v) Maharashtra Rs 2,00,000(vi) Orissa Rs 1,00,000(vii) Punjab Rs I,20,000(vii i) West Bengal Rs 80,000State Governments and Union TerritoryAdministrations of Andhra Pradesh, Chan-digarh, Dadra & Nagar Haveli, Daman &Diu, Goa, Haryana, Karnataka, Kerala,Madhya Pradesh, Maharashtra, Mizoram,Orissa, Pondicherry, Punjab, Tamil Nadu,Uttar Pradesh and West Bengal havereported that separate Labour Cells havebeen constituted in the State Governmentsfor ensuring enforcement of the variousprovisions of the Act and/or monitoring theactivities taken up in compliance with thedirections of the Hon'ble Court.Most of the State Governments and UnionTerritories which have replied to the ques-tionnaire and where employment of childrenin hazardous occupations has been found,have reported that besides taking action forcollection of compensation @ Rs 20,000 per

$ Extracts from the Affidavit of the Secretary to the Ministry of Labour, Government of India in the Supreme Court ofIndia on December 4, 1997 on the action taken by the Government to implement the directions given by the Supreme Courton December 10, 1996.

child employed by the offending employer,penal action has also been initiated againstthe employer. In the State of Orissa suchaction is under process, while in the State ofMeghalaya and Tamil Nadu, no such actionis reported to have been initiated.

The information asked for in the questionnaireis still awaited from the State Governments andUnion Territories Administrations of ArunachalPradesh, Assam, Bihar, Delhi, Gujarat, HimachalPradesh, Jammu and Kashmir, Nagaland andRajasthan and would be furnished before theSupreme Court in the form of additional affidavit,when received. They have been demi-officiallyreminded on November 7, 1997 and again onDecember 3,1997 to send their responses withoutdelay.

That besides taking action to comply with thedirections of the Supreme Court, as contained inthe aforesaid judgement, the Central Governmenthas also initiated action to amend the ChildLabour (Prohibit ion and Regulation) Act of 1986to make it more stringent and effective, on thebasis of suggestions received from the StateGovernments. Necessary amendment proposalsare being actively considered by the Governmentof India.

That besides initiating action to amend theChild Labour (Prohibition and Regulation) Act1986, Government of India has also identif ied anumber of new occupations and processes suchas gem cutting and polishrng, zarrmaking, leathergoods manufacturing, agarbatti manufacturing,lock making, sports goods manufacturing etc tomention a few, for inclusion in the Schedule tothe Act so that employment in these additionaloccupations and process could be prohibitedunder Section 3 of the Act instead of beineregulated.

That during the course of discussions with therepresentatives of ILO, it was revealed that theILO could consider funding a second survey.Accordingly, u proposal for seeking financial

JOURNAL OF INDIAN SCHOOL OF POLITICAL ECONOMY APRIL-SEPT 2OO1

assistance for conducting the survey has been sentto the International Labour Organization inGeneva. In the event of financial assistance fromILO not being available, funds for conducting thesurvey would be obtained from overall budgetaryallocation, subject to the approval of Ministry ofFinance.

That the Hon'ble Court would very kindlyappreciate that the task relating to withdrawal ofchildren from hazardous occupations and theirrehabil itation, which is diff icult and sensitive,cannot be the work of one single Ministry orDepartment or Agency. Instead it is the task of allconcerned Ministries/Departments in the Centraland State Governments, Central Employers' andTrade Union Organizations, NGOs, etc. That thisHon'ble Court would also kindly appreciate thatthis age-old social evil cannot be eradicated byone single stroke. For grappling with and over-coming the problem of child labour in the country,which is of a formidable dimension, sustainedefforts on the part of each one and everyone whois directly or indirectly concerned in the matterwould need to be taken. During the last two years,the Central Government has started the NationalChild Labour Projects in 64 additional childlabour endemic districts (taking the total numberof projects to76) and at present 1,05,000 childrenare enrolled in the special schools which are beingrun under these projects. This respondent humblysubmits that efforts would continue to be made atthe Central and State level to give effect to thedirections of this Hon'ble Court in letter and spiritwith the ultimate objective of eliminating childlabour in all its forms even though it may besomewhat difficult to precisely indicate a specifictime frame by which child labour in all industries,occupations and processes can be eliminated lock,stock and barrel.

That, on the basis of the information containedin this affidavit, it is most humbly and respectfullyprayed that this Hon'ble Court may be pleased topass such orders and/or further directions as maybe deemed fit and appropriate in the facts andcircumstances of the case.