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2017 DIGILAW 852 (HP)

Court On Its Motion v. State Of H. P.

2017-07-25

AJAY MOHAN GOEL, SANJAY KAROL

body2017
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 exceptions, so carved out in sub-Section(ii) of Section 3. Even an adolescent is not permitted to work in any hazardous occupation or process. 12. By virtue of Section 19 of the 2016 Act, a new Section came to be inserted, mandating the Government to constitute a fund in a District, to be called as the Child and Adolescent Labour Rehabilitation Fund. 13. In fact, by virtue of Section 14(c), every child and adolescent in contravention of the provisions of the 1986 Act is to be rescued and rehabilitated, in accordance with law. 14. The aforesaid Acts came to be enacted in the light of constitutional provisions, more specifically Articles 24, 39 and 45 of the Constitution of India. 15. 13. In fact, by virtue of Section 14(c), every child and adolescent in contravention of the provisions of the 1986 Act is to be rescued and rehabilitated, in accordance with law. 14. The aforesaid Acts came to be enacted in the light of constitutional provisions, more specifically Articles 24, 39 and 45 of the Constitution of India. 15. The Apex Court in M.C. Mehta v. State of T.N. and others, (1996) 6 SCC 756 has held that:- "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 indicated. 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 farmers 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 Krishnan, J.P. v. State of Andhra Pradesh and others, (1993) 1 SCC 645 , 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 an 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. 16. Further, in the said report, it was held that: "36. We part with the fond hope that the closing years of the twentieth century would see us keeping the promise made to our children by our constitution about a half-century ago. 16. Further, in the said report, it was held that: "36. We part with the fond hope that the closing years of the twentieth century would see us keeping the promise made to our children by our constitution about a half-century ago. Let the child of twenty-first century find himself into that "heaven of freedom" of which our poet laureate Rabindranath Tagore has spoken in Gitanjali." 17. Also the Apex Court in Society For Unaided Private Schools of Rajasthan v. Union of India and another, (2012) 6 SCC 1 , held that primary responsibility for children''s right, lies with the State, which has to respect, protect and fulfill children''s rights and also discharge the duty to regulate private institutions that care for children; protect children from violence or abuse; protect children from economic exploitation, hazardous work and to ensure human treatment of children. Salil Bali v. Union of India and another, (2013) 7 SCC 705 ; Bandhu Mukti Morcha v. Union of India and others, (1997) 10 SCC 549 ; Laskhmi Kant Pandey v. Union of India, (1984) 2 SCC 244 ; and Labourers Working on Salal Hydro-Project v. State of Jammu and Kashmir and others, (1983) 2 SCC 181 . 18. The Apex Court in Unni Krishanan (supra) enhanced the status of right to education to be a fundamental right. 19. Employment of a child, in fact, not only violates the constitutional mandate but also statutory provisions of the Right of Child to Free and Compulsory Education Act, 2009. In fact, one can take note of other Statutes prohibiting employment of a child. The Factories Act, 1948; The Mines Act, 1952; The Children Act, 1960; and the Juvenile Justice (Care and Protection of Children) Act, 2015, provide for special places, special mechanism for proper care, development, treatment and social reintegration other than providing for the development and rehabilitation of neglected. 20. Without proper food, shelter and sanitation, which are the basic amenities for survival, children who are illegally employed are paid meager remuneration. Their agony does not end here, they are made to work like adults without any comfort and amenities. They are frequently abused in every sense of the word. Children are the assets of the nation and are indispensible for nation building. 21. It is not that there is no law dealing with the issue in hand. Their agony does not end here, they are made to work like adults without any comfort and amenities. They are frequently abused in every sense of the word. Children are the assets of the nation and are indispensible for nation building. 21. It is not that there is no law dealing with the issue in hand. What is lacking, is proper and effective implementation of mechanism and machinery provided for. To illustrate, it is not the case of the State that no detection of child labour was found in 7 out of 12 Districts of the State of Himachal Pradesh. Inspections were carried out, but not in Districts Bilaspur, Chamba, Hamirpur, Kullu and Lahaul & Spiti. Kullu is notorious for violation of law pertaining to Child rights, more specifically those who are pushed into the trade of drugs. 22. At this juncture, one may also take note of the fact that the International Labour Organization Convention Nos. 138 and 182 of child labour stand ratified by the Government of India. 23. We have already observed that there is contradiction with regard to the stand taken by the respondents in their respective affidavits, so filed by them. One finds that for nurturing and nourishing the child, the concern expressed by the State is that of indifference, if not callous. Now this step-motherly treatment while dealing with such a sensitive issue is unacceptable and impermissible. In fact, it is criminal and definitely unpardonable. The Government, in sheer disregard of its duty to protect the child, has shamed the State, in checking the menace and disease of child labour and dereliction in discharge of duties by the officials, is certainly unpardonable. Showcasing of Policies with production of statistics, often misleading, is only with the purpose of self-patting, which has actually camouflaged the real issue. 24. Showcasing of Policies with production of statistics, often misleading, is only with the purpose of self-patting, which has actually camouflaged the real issue. 24. As such, this Court disposes of the present petition with the following directions:- (i) The Chief Secretary to the Government of Himachal Pradesh shall convene a meeting of all the duty holders in ensuring proper implementation of the provisions of the Act; (ii) The Committees be revamped and reconstituted with inclusion of persons, who are sensitive to the issue on child labour; (iii) Regular inspections be got conducted of all the establishments known for employment of children and adolescent, more specifically, wayside dhabas and other eateries; (iv) Sensitize the general public about the existence of statutory provisions and the need for making the children understand the importance of education; and (v) Provide sufficient funds required for the upkeep, maintenance or rehabilitation of the child. 25. An affidavit of compliance be positively filed within a period of three months from today. 26. With the aforesaid observations, present petition stands disposed of, so also pending application(s), if any.