Back
IN THE HIGH COURT OF PUNJAB AND HARYANA
[DIVISION BENCH]
Before
The Hon’ble Mr. Chief Justice A.K. Sikri
The Hon’ble Mr. Justice Rakesh Kumar Jain
Civil Writ Petition No.9968 of 2009 (O&M)
Court on its own motion
v.
State of Punjab
{Decided on 09/04/2013}
Child Labour--Unlawful Compulsory Labour--Whenever a child above the age of 14 years is forced to work, it has to be trearted as an offence under Section 374 IPC and it is to be dealt with sternly.
Child Homes--There is necessity of mandatory registration of these children homes and taking action against those Children Homes which are not registered.
Child Labour--Rehabilitation of Rescued Children--Directions issued.
(A) Child Labour (Prohibition & Regulation) Act, 1986--Employment age--There shall be total ban on the employment of children up to the age of 14 years, be it hazardous or non-hazardous industries--This would, however, be subject to the exception that child should only be allowed to work with the family in only those trades/occupations notified by the Child Labour Technical Advisory Committee as constituted under Section 5 of the Act of 1986 and for the sole purpose of learning a new trade/craftsmanship or vocation.
This exemption too can only be permitted if the same is not in violation of Article 21-A and provisions of Article 51A(k) of the Constitution of India, i.e., where the child is attending regular school to get education. In case the child is not studying in a school, this exemption cannot be claimed even by the family as it affects rights of the child as protected by the Constitution of India especially those under Article 21 of the Constitution. (Para 13)
(B) Child Labour (Prohibition & Regulation) Act, 1986--Unlawful Compulsory Labour--That whenever a child above the age of 14 years is forced to work, it has to be trearted as an offence under Section 374 IPC and it is to be dealt with sternly--Indian Penal Code, 1860, S.379.
The problem, however, may arise when a child between 14-18 years of age is committed to labour by the parents willingly and with their consent--It may be difficult to prohibit the same--Having regard to the age of the child fixed under the Child Labour Abolition Act, we are of the opinion that in such circumstances, the case can still be brought before the State Commission formed under the CPCR Act, 2005 which has the jurisdiction to look into the matters of violation of child rights--The task of this Commission is akin to that of Human Rights Commission with the only difference that the State Commissions, established under the CPCR Act, would be dealing with the human rights of children--We, thus, hold that as and when any matter is brought to the notice of the State Commission (or for that matter suo motu cognizance taken by the State Commission) involving violation of child rights even where a child above the age of 14 year is employed, the State Commission under the CPCR Act will have the jurisdiction to deal with the same and pass necessary directions. (Para 15)
(C) Child Labour (Prohibition & Regulation) Act, 1986--Rehabilitation of Rescued Children--Directions issued. (Para 17)
(A) MOVING OUT THE CHILD FROM THE EXPLOITATIVE ENVIRONMENT:
the rescued child must not be left alone and should not be sent back to parents and/or to the same environment where he/she is again likely to be exploited. It is the duty of the State to ensure the availability of suitable facility/hostel where the child can stay.
(B) ENSURING EDUCATION:
As per the provisions of "The Right of Children to Free and Compulsory Education Act or Right to Education Act (RTE)" and the provisions of Article 21A of the Constitution, the State must ensure that the rescued Child is immediately admitted in the age-appropriate class of a good school under the provisions of RTE Act. The first preference should be "Private Aided Schools" where there are existing vacancies in the age-appropriate class. The State has to monitor and ensure that the child is comfortable in his new surroundings and all what may be necessary is provided to the child to adapt to the new surroundings.
Suggestion is in agreement with the provisions of "The Right of Children to free and Compulsory Education Act or Right to Education Act (RTE)" and the provisions of Article 21A of the Constitution.
(C) ENSURING FOOD/MEALS/CLOTHES/ NECESSITIES:
The State is running many incentive schemes for outof- school children, like the mid-day scheme and many other under Sarv Siksha Abhiyaan, etc. the State must ensure that the recovered Child is provided healthy food for sustenance and all basic necessities.
The proposal is in line with the proposal of the Government of India under the "National Charter for Children, 2003," the "WHO Child Growth Standards (Acta Paediatrica, International Journal of Paediatrics, Volume 95 April 2006 Supplement 450, ISSN 0803-5326)" and the vision of the Government under various statutory schemes.
(D) PENALTY/COMPENSATION SHOULD BE FOR THE BENEFIT OF THE CHILD:
A sum of Rs.25,000/- or more (suggestion is 1 lakh rupees, in view of the change in rupee value between 1996 and 2012) should be recovered from the violator as compensation in each and every case of violation detected and under the supervision of the "Commission for Protection of Child Rights" the same should be deposited in the name of the child as a monthly interest bearing "Fixed Deposit" and after attaining age of majority, or after employment of the child on attaining the age of majority, the said amount should be deposited in a Public Provident Fund (PPF) account in the name of the young adult, to be maintained by him/her in future, but with a 5 years lock-in period, or to be utilised for payment of fee for any form of higher education supervised by the child protection commission. In M.C. Mehta vs. State of Tamil Nadu [(1996) 6 SCC 756] after referring to how impracticable and unrealistic the distinction between hazardous and non-hazardous processes was, the Supreme Court directed that either employment be given to an adult member of the family so that the child can be taken out of employment or, as an alternative, a corpus of Rs.25,000/- be formed by the offending employer and out of this corpus a monthly income be paid to the family. The Supreme Court further directed that on discontinuation of employment, the child should be given free education in a suitable institution.
(E) REGULAR MONITORING:
the Child Protection Commission should regularly monitor the rehabilitation of the rescued children."
(D) Commissions for Protection of Child Rights Act, 2005, S.17 & 18--Held;
1. State Commissions are to be established under the Chairmanship of a retired Judge of High Court.
2. In order to ensure that these Children Homes function properly, the State Commissions should undertake the job of overlooking the functioning of these bodies which is also the power given to it under Section 13 of the CPCR Act.
3. Children Courts to be specified--Special Public proseators are to be notified for conducting cases in such a Court.
4. Chandigarh Judicial Academy to evolve a module/training programme for sensitizing all the stake-holders on child rights and also to deal with the cases in the Children's Courts.
5. Child witness Court room to be established in all Court complexes.
(E) Juvenile Justice (Care and Protection of Children) Act, 2000, S.34--Child Homes--There is necessity of mandatory registration of these children homes and taking action against those Children Homes which are not registered--No Government grant or financial aid or any other benefit be given to such Children Homes which are not registered. (Para 24)
Mr. A.K. SIKRI, C.J.:- The children in any society, being the most voiceless and defenceless group, require special attention for protection of their human rights. It is indeed the duty of the society at large, including the legal and judicial authorities, to protect those who are helpless to protect themselves, and this is especially true of children. The controversy raked up through the present petitions also relates to the rights of the children.
2. In the year 2009, this Court had taken suo motu cognizance of the issue raised in CWP-9968-2009 pertaining to the proper and effective implementation of the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000 (hereinafter referred to as ‘the J.J. Act’). The trigger point was the two news items, one dated 18.6.2009 and the other dated 19.6.2009 depicting appalling conditions of the Children Homes run by the Department of Women and Children and the Observation Homes run by the Department of Social Security. Taking cognizance of these two news items the Vacation Judge passed orders dated June 20, 2009 directing the Sessions Judge of the area where these Children Homes and Observation Homes are run, to conduct a surprise visit forthwith and report about the running of those institutions, particularly, in respect of following:
1 The quality of food served to the inmates;
2 The medical facilities for the inmates;
3 The health status of the inmates
The reports were received on which orders dated July 09, 2009 were passed directing the Secretary, Punjab State Legal Services Authority to scrutinize these reports and put up a note indicating, in a tabulated form, the deficiencies that need to be removed by these institutions. Afterwards, the Juvenile Justice Committee of this Court in its meeting held on August 11, 2009, took note of the pitiable state of affairs at the Observation Home at Sonepat. The sordid state of the said Observation Home depicted that Observation Home at Sonepat had two barracks and a front side courtyard with high walls. The entry gate was similar to jail gate. The Home was having no source of recreation facilities or playground for the juveniles housed therein. The courtyard was filled with stagnated water due to blockage of drainage system and there was hardly any place for going out of barrack for using courtyard. Enquiry revealed that there was no arrangement for potable water. The bathrooms and kitchen were also in deplorable condition. The Observation Home was managed by a single teacher who, besides performing job of a teacher, was also looking after the overall administration of the Home. In this manner, no meaningful education was being imparted to the children. The Observation Home was found to be worse than a prison. Observation Home at Hoshiarpur (Punjab) was found to be no better with almost similar dilapidated conditions. It was also noted that the juveniles were detained in both the Observation Homes for very long periods, in some cases for 20-22 months which was against the letter and spirit of Section 2 of the J.J. Act. As that provision entitles the juveniles to appeal as a matter of right, the Committee, thus, felt that a lot of steps were required to put the various provisions of the juvenile justice system on track. Some of the violations of the J.J. Act, which were found, were:
(i) There was no nomination of Judicial Magistrate Ist Class to head the Juvenile Justice Board so as to assign supervisory powers to the Chief Judicial Magistrate to oversee and review the working of the Juvenile Justice Board.
(ii) The requirement of establishment of Observation Homes and Special Homes in every district was not carried out;
(iii) There was a need to sensitize not only the Juvenile Justice Boards but also the State functionaries in regard to the requirements of the J.J. Act.
(iv) Child Welfare Committees for every district or for group of districts, as required under Section 9 of the J.J. Act, were not constituted in
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
