The main legal point established in the judgment is the imperative need for the proper implementation of statutory provisions to protect the rights of children and prevent child labour.

JUDGMENT

Sanjay Karol, A.C.J. - A news report published in ''Dainik Jagran'' (Hindi daily newspaper) dated 30.04.2017, highlighted the insensitivity and failure of the State and its functionaries in implementing the provisions of the Child Labour (Prohibition and Regulation) Amendment Act, 2016 (hereinafter referred to as the Act). Allegedly children below 14 years of age were found working as waiters/helpers in various Hotels and Restaurants in the Districts of Shimla, Sirmour, Chamba, Kangra, Kullu and Manali of the State of Himachal Pradesh. The statistics revealed that in one year, even though 100 children working as labourers were rescued, yet only 5-6% were rehabilitated through Bal Ashrams. Also no concrete data establishing roots of such children; their undertaking free studies; and their parentage was maintained.

2. This Court took suo motu cognizance of the news report, highlighting the issue of child labour and issued notice. Both the Labour Commissioner, Shimla, H.P. (respondent No.2) as also the Director, Women and Child Development (respondent No.3) have filed their affidavits. Affidavits undoubtedly project a very rosy picture, which actually is not so. On paper everything appears to have been complied with.

3. The Director, Women and Child Development, states that in every district, Welfare Committees stand constituted under the provisions of the Juvenile Justice Act, 2015 and the Model Rules, 2016.

4. The Labour Commissioner, in his affidavit points out the action taken in implementing the provisions of the Child Labour (Prohibition and Regulation) Act, 1986 (hereinafter referred to as the 1986 Act) as also the Act. In the last one year, different establishments, in all the 12 Districts were inspected. In Districts Una, Sirmour, Solan, Shimla, Kinnaur and Kullu, violation of provisions of the Act were detected and consequential action taken against the persons.

5. Significantly, he does not disclose the action taken in rehabilitating the children, who were found to be governed under the Act.

6. In our considered view, affidavit filed by the authorities is mutually contradictory or at least irreconcilable and this we say so for the reason that if in Shimla District, 14 cases were detected, then how is it that 18 children were rescued, for it is not the case that more than one child was found to be working in a single establishment. Be that as it may, fact of the matter being that news report reveals a very sorry state of affairs in the implementation of statutory provisions.

7. The 1986 Act was enacted with the object of prohibiting engagement of children in certain employments and regulate condition of work of children in certain other employments. "Child" as per sub-Section (ii) of Section 2 of the 1986 Act, is defined to be a person who has not completed his fourteenth year of age. Save and except for certain exceptions, employment of a child is prohibited by virtue of Section 3 of the Act.

8. Section 5 envisages constitution of Advisory Committees to be called as "Child Labour Technical Advisory Committees". Violation of provisions of 1986 Act entails both civil and penal consequences by virtue of Section 14.

9. In the advancement of protecting rights of children, the 1986 Act came to be amended. The object being to prohibit engagement of children in all occupations and prohibit engagement of adolescents in hazardous occupation and processes.

10. The 2016 Act by virtue of Section 4, created distinction between a "child" to be a person, who has not completed 14th year of age or the age specified in the Right of Children to Free and Compulsory Education Act, 2009, whichever is more, and that of an "adolescent" to be a person, who though has completed 14th year of age, but not completed his 18th year of age.

11. By virtue of Section 5 of the 2016 Act, the 1986 Act as it stands today, no child can be employed or permitted to work in any occupation and process. All this, of course, is subject to certain exception