VERY IMPORTANT POINTS
1. Abolition of child labour is definitively a matter of great public concern and significance.
2. In cases of employment of child labour, the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Child Labour (Prohibition and Regulation) Act, 1986, a sum of Rs. 20,000, which sum would be deposited in Child Labour Rehabilitation-cum-Welfare Fund and the liability of the employer would not cease even if he would desire to disengage the child presently employed.
3. In cases of employment of child labour, it is the obligation of the State to see that an adult member of the family, whose child is in employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the child and in those cases where it would not be possible to provide job, the appropriate Government would, as its contribution/grant, deposit in Child Labour Rehabilitation-cum-Welfare Fund a sum of Rs. 5,000/- for each child employed.
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Headnote:CHILD LABOUR-Constitution of India-Articles 24, 39(e), 39(f), 41, 45 & 47-Convention on Rights of Child-Child Labour (Prohibition and Regulation) Act, 1986-Sections 3 & 14-Problem of child labour-Magnitude of the problem-Constitution call-International commitment-Statutory provisions-Causes of failure to control the problem-State obligations-Compulsory education -State to ensure alternative employment for adult member of family, whose child is in employment in a factory or a mine or in other hazardous work, in lieu of child-Creation of a Child Labour Rehabilitation-cum-Welfare Fund-Liability of employer to deposit Rs. 20,000 for every child employed in contravention of provisions of Act-Liability of employer would not cease even if he would desire to disengage child presently employed-In cases where State is unable to provide alternate employment, appropriate Government would deposit a sum of Rs. 5000/- for each child employed-Parent/guardian of concerned child would be paid income earned on a sum of Rs. 25000/- every month-Employment given or payment made would cease to be operative if child not sent for education-Enforcement of penal provisions if required-Necessary directions made to State.
       Held, if employment of child below the age of 14 is a constitutional indiction insofar as work in any factory or mine or engagement in other hazardous work, and if it has to be seen that all children are given education till the age of 14 years in view of this being a fundamental right now, and if the wish embodied in Article 39(e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age, and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39(f), it seems to us that the least we ought to do is see to the fulfilment of legislative intendment behind enactment of the Child Labour (Prohibition and Regulation) Act, 1986. Taking guidance therefrom, we are of the view that the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs. 20,000/-. The liability of the employer would not cease even if he would desire to disengage the child presently employed. It would perhaps be appropriate to have such a fund district wise or area wise. The fund so generated shall form corpus whose income shall be used only for the concerned child. The quantum could be the income earned on the corpus deposited qua the child. To generate greater income, fund can be deposited in high yielding scheme of any nationalised bank or other public body. (Para 27)
       Further held, strictly speaking a strong case exists to invoke the aid of an Article 41 of the Constitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising of standard of living of the population, and Articles 39(e) and (f) as to non-abuse of tender age of children and giving opportunities and facilities to them to develop in healthy manner, for asking the State to see that an adult member of the family, whose child is in employment in a factory or a mine or in other hazardous work, gets a job anywhere, in lieu of the child. This would also see the fulfilment of the wish contained in Article 41 after about half a century of its being in the paramount parchment. Like primary education desired by Article 45, having been given the status of fundamental right by the decision in Unni Krishnan. We are, however, not asking the State at this stage to ensure alternative employment in every case covered by Article 24, as Article 41 speaks about right to work within the limits of the economic capacity and development of the State . In those cases where it would not be possible to provide job as above-mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of Rs. 5,000/- for each child employed in a factory or mine or in any other hazardous employment. (Para 29)
       Consequently held : On discontinuation of the employment of the child, his education would be assured in suitable institution with a view to make it 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. [Para 30(6)]
       Then held : The task is big, but not as to prove either unwieldy or burdensome. The financial implication would be such as to prove a damper, because the money after all would be used to build up a better India. In this context, it is worth pointing out that poverty as such has not stood in the way of other developing countries from taking care of child labour. This shows that has caused the problem of child labour to persist here is really not dearth of resources, but lack of real zeal. Let this not continue. Let us all put our head and efforts together and assist the child for its good and greater good of the counrty. (Para 32)
       (ii) CHILD LABOUR-Non-hazardous jobs-State is directed to see that working hours of child are not more than four to six hours a day-Child should receive education for two hours each day-Entire cost of education is to be borne by employer.

Judgement Key Points

Your argument that employing minors for electrical work, which is classified as hazardous, constitutes a violation of Article 24 of the Constitution is well-founded. As established in the legal document, the constitutional mandate prohibits the employment of children below the age of 14 in hazardous occupations, including work involving electricity, due to the inherent risks and the fundamental rights to protection, education, and development of children (!) (!) (!) .

Furthermore, the legislation explicitly bans employment in hazardous processes and occupations, with specific provisions designed to prevent child exploitation in dangerous industries such as electrical work (!) (!) . The employment of minors in such hazardous roles not only contravenes statutory provisions but also breaches constitutional protections aimed at safeguarding childhood and ensuring their healthy development (!) (!) .

Regarding the experience gained as a minor in such illegal employment, the petitioners can argue that any such experience is "void ab initio," meaning it is legally invalid from the outset, because it was obtained through an act that is constitutionally and legally impermissible. The illegality of the employment directly impacts the validity of any rights or benefits derived from it, rendering such experience as having no legal standing or enforceable value (!) (!) .

In summary, employing minors in hazardous electrical work is a clear violation of constitutional rights and statutory prohibitions. The experience gained under such employment would be considered null and void from inception due to the illegality of the act.

JUDGMENT

Hansaria. J.-"I am the child.

All the world waits for my coming.

All the earth watches with interest to see what I shall 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 succeed or fail,

Give me, I pray you, these things that make for happiness.

Train me, I beg you, that I may be a blessing to the world".

Mamie Gene Cole

It may be that the aforesaid appeal lies at the back 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 formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so for as the society is concerned.

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 IV 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 our Constitution is, after the decision by a Constitution Bench of this Court in Unni Krishnan1, 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 exploited lot. Child labour is a big problem and has remained intractable, even after about 50 years of our having become independent, despite various legislative enactments, to which we shall refer in detail subsequently, prohibiting employment of a child in a number of occupations and avocations.

3A. In our country, Sivakasi was once taken as the worst offender in the matter of violating prohibition of employing child labour. As the situation there had became intolerable, the public spirited lawyer, Shri MC Mehta, thought it necessary to invoke this court s power under Article 32, as after all the fundamental right of the children guaranteed by Article 24 was being grossly violated. He, therefore, filed this petition. It once come to be disputed of by an order of October 31, 1990 by noting that in Sivakasi, as on December 31, 1985, there were 221 registered match factories employing 27,338 workmen of whom 2941 were children. The Court then noted that the manufacturing process of matches and fireworks (for the manufacture of which also Sivakasi is a traditional centre) is hazardous, giving rise to accidents including fatal cases. So, keeping in view the provisions contained in Article 39(f) and 45 of the Constitution, it gave certain directions as to how the quality of life of children employed in the factories could be improved. The court also felt the need of constituting a committee to oversee the directions given.

4. Subsequently, suo moto cognizance was taken in the present case itself when news about an "unfortunate accident", in one of the Sivakasi cracker factories was published. At the direction of the Court, Tamilnadu Government filed a detailed counter stating, inter alia, that number of persons to die was 39. The Court gave certain directions regarding the payment of compensation and thought that an advocates com

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1996 Supreme(SC) 2121

Cases Referred (1)