Role of Indian Judiciary in Promoting Child Welfare – LAWPHILIC

ABSTRACT

Child labour, in and of itself, is a violation of children’s human rights since it deprives them of their “growth”, “development”, “education”, and, indeed, “childhood” itself. Article 24 of the Indian Constitution states that no child under the age of 14 may work in a “mine factory”, or other dangerous environment. However, the Constitution doesn’t explicitly specify what “dangerous work” is. Does it refer to simply physical risks or also include “moral”, “mental”, “psychological”,  hazards etc.?[1] One of the biggest issues facing the whole globe, especially emerging nations like India, is the prevalence of child labour. But as time has gone on, a global awareness of the severity of the issue has emerged. A country’s child population that is discovered to have engaged in “paid” or “unpaid employment” in a certain scenario is considered to have engaged in child labour, even if the definition and notion of child labour might vary greatly relying primarily on “social”, “economic”, “environmental”, or “physical postulates”. Therefore, the primary goal of this article is to examine the judicial trends surrounding the issue of child labour. Additionally, an effort has been made to examine the issue of child labour in relation to those working children under the age of 14 who are engaged in gainful “industrial” and “non-industrial” occupations that are not only seen as detrimental to their “physical”, “mental”, or “moral development” but also seriously impede their social advancement.[2]

INTRODUCTION

In India, there is a severe problem with child labour. On the one hand, India is moving from being a developing to a developed state; it ranks fifth in terms of economic growth, claims a permanent seat on the UN Security Council, and more than “221 people have entered the club of billionaires in recent decades.” India, on the other hand, has made little success in the fight against child labour since it “holds the world’s highest number of child labourers.” The “greatest incidences” of child labour are reportedly found in India, despite the country having the “strongest regulatory framework” in the world with the express purpose of abolishing child labour. There are approximately “300 Central and State Statutes targeting children to “safeguard” and “help” them in attaining the core principle of our National Charter of child labour welfare. This article analyses the rising issue of child labour in India as well as a few court decisions on the subject to evaluate the role that the courts have had in outlawing, enhancing, or easing the employment of children and their working circumstances. In order to safeguard the interests of both children and society, it concludes with a few recommendations for resolving this pervasive problem that affects kids generally. [3]

MAGNITUDE OF THE PROBLEM

Numerous children in India are forced to labour every day, losing their “childhood,” “education,” and “complete mental” and “physical” development. According to the 2011 census conducted by the Indian government, “there were 43.53 lakhs children employed between the ages of 5 and 14.” Although this is a growth from the “1.26 crore number from the 2001 census,” structural problems that promote child labour, such as “poor,” “weak enforcement,” and “regulation,” continue. However, the absence of a “functional definition” for “child labour” and “labour” makes it difficult to estimate the number of child labourers in India. “ The term “unpaid employees” was not included in the 1971 official census of child labourers. Even though unpaid workers were included in official estimates, children who tend “cattle,” “collect water and wood,” and prepare “meals” as part of their household chores were not classified as “working children” in 1981. Even if they are paid, children who labour with their parents and street kids who act as “prostitutes” and “beggars” are either “underreported or not reported at all.” Children helping “hawkers”, “shoe shiners”, and “newspaper salespeople.” If this “underreporting” was corrected in subsequent censuses is uncertain. “Child homelessness,” “poor birth records,” “informal sector jobs,” and “large refugee populations” are other factors that affect underreporting.[4]

SO MUCH TO BE DONE – YET SO LITTLE DONE

Critics argue that India’s legal system is poorly administered and rife with loopholes. Employers can thus avoid paying such fines by altering their production processes or contacting government officials. The Child Labor Act also doesn’t deal with the primary causes of child labour in India, which include “poverty,” “caste discrimination,” a “lack of educational possibilities,” and “misconceptions” regarding the nature of children’s work. Despite enormous advancements in over the past ten years India has received, in the Child Development Index for “education,” “nutrition,” and “child health” it is ranked one of the lowest.  Despite the Child Protection Act, there are several ways that children’s rights are violated, such as when they are “denied” or “unable” to access their rights to “food,” “education,” and “health.” “, as well as defence against exploitation. These days, discovering child labour cases in the Law Reports is like hunting for a “needle in a haystack “.  Perhaps the reason is because not many cases are brought to higher courts. This may be unfortunately the truth, despite the government’s declarations that “children are the nation’s greatest wealth” and that the “country’s future” is inextricably linked to how well they are raised and fed, and that child labour is not a viable choice.”[5]

In M.C Mehta v. State Of Tamil Nadu And Others [6] , the decision was an important first-step in protecting the rights of India’s child labours. According to the Court, “poverty is the fundamental motive” for minors to work. The Court ordered enterprises to pay these children a minimal wage and to ensure that they are insured in order to safeguard against child labour abuse. The “welfare fund” and offering “recreational” and “medical services” were established by the decree in an effort to balance children’s desire for employment with the Constitution’s guarantee of “a good standard of living.” In this case, the Court was limited in its duty as a “policymaker.” ” No kid under the age of 14 shall be compelled or permitted to work in any industry”, according to the Factories Act. It is confusing how the Supreme Court reconciled its decision to let children to work in factories “if they are packing matches rather than making them” with its restriction on “any factory” activity. The Court’s apparent acceptance of the “nimble fingers” interpretation of children’s work is another matter of controversy. They observed that the young workers’ “Sensitive hands are better adapted to sorting out the produced commodities and prepping them for packing. Several human rights groups, including Human Rights Watch, have questioned the fundamental premise of “nimble fingers”.[7]

WHAT THE COURT SHOULD/COULD HAVE DONE

The Court stressed that employers must contribute to the “well-being of children at work,” whether through a “insurance scheme” or by making contributions to a “welfare fund,” but it made no mention of the “potential penalties for failing to pay children a minimum wage” or “employing children” in the manufacturing process. Despite the arguments, the Court stated that poverty is the “fundamental reason that leads parents of a child” to secure employment . The Court’s final decision too represented this concern about poverty; rather than outright prohibiting child labour, the Court tried to regulate it in order to protect working children’s dignity and standard of living. Otherwise, “no parent, especially no mother, would want a young child to work in a dangerous workplace.” The court stated that unless a family’s “alternative income” is ensured, the “topic of eradication of child labour” would really remain a “will-o’-the-wisp.” Rather than outright outlawing child labour, the Court tried to strike a “balance between the child’s economic necessities and his or her basic rights”. Child labour will cease to exist once “poverty is removed”, according to the court. The reasoning is that if there is a low unemployment rate, then children will be less likely to have to work and more likely to attend school. [8]

However, is poverty actually the fundamental problem? Since 1991, India’s economy has grown at an unmatched rate. However, it indicates that child labour is “at the same levels as in preceding decades in the 1990s.” This figure demonstrates that “stopping child labour alone will not reduce poverty.” The “socioeconomic elements” that encourage children to work must be addressed in order to stop child labour in India. Long-held beliefs about “women’s education,” the “value of formal schooling,” and “structural concerns linked to caste, “religion,” and “class” must be dispelled if child labour is to be eradicated. The legal system in India does not go far enough in resolving these problems. The Child Labor Act and the government’s policy towards child labour is rarely implemented and is rife with loopholes that employers may take advantage of. Furthermore, children employed in “non-hazardous areas” “do not get any legal protection.” According to the Act, local labour inspectors are in charge of implementing these regulations. These labour inspectors are overworked and susceptible to “corruption and bribery,” as was previously reported. Even if research indicates that only a “small percentage of enterprises are penalised,” even if labour inspectors are allowed to detain businesses for violating the Act. The most concerning aspect of the decision is that it offers no respite to young children who work in industries other than those that are classified as hazardous.

JUDICIAL COMPROMISE – ALLOWING CHILDREN TO WORK IN PROHIBITED EMPLOYMENT

In India, the legal system is focused on protecting children from the dangers of working in unhygienic conditions. For young children employed in supposedly non-hazardous occupations, there isn’t a comparable regulation, though. Even if the state is successful in outlawing child labour in dangerous occupations, there is always a chance that the practise will either disappear or that the kids will look for employment in occupations that are not covered by the Act or the Court’s decision. In conclusion, the Court impliedly approved of child labour in “non-hazardous industries,” “family businesses,” or “government training centres.” The Campaign Against Child Labour (CACL) undertook a fact-finding tour in Sivakasi in November 2001. It discovered “six children working in two fireworks manufacturers. It also discovered numerous children making fireworks at home”.

Bandhua Mukti Morcha v. Union of India [9]is another public interest litigation filed by the petitioner organisation seeking a “writ of mandamus” directing the government to take steps to “stop the employment of children in the carpet industry” in the State of Uttar Pradesh; “to appoint a committee to investigate their working conditions”; and to issue such “welfare directives” as are appropriate for “total prohibition on the employment of children under the age of 14” in the carpet industry. The court in the present instance acknowledged the worth of children and childhood and what the country would lose if they were not well cared for, but it did not think it was necessary to “push the government to outlaw child labour.” The opposite was asserted, saying that “total employment prohibition may push the children and bulk them up towards poverty and other malicious circumstances, making them “vagrant”, “hard criminals”, and prone to social risks, etc.” Because of this, the court thinks that the (poor) children are more likely to become a danger to society if they don’t work! As a result, the court came to the conclusion that outlawing child labour immediately would be both “impractical” and “counterproductive”. The court ruled that the most “dangerous and undesirable” forms of child labour should be outlawed first, including “slavery,” “bonded labour,” “trafficking,” “prostitution,” “pornography,” and “destructive sorts of labour,” among others. In this way, the court gave “implicit assent to the continuance of other kinds of child labour” while also adding some safeguards.

JUDICIAL RELUCTANT ACCEPTANCE OF CHILD LABOUR?

In Labourers Working on Salal Hydro Project v. State of Jammu and Kashmir[10], the court’s unconditional acknowledgment of child labour as a terrible reality, despite the poverty argument, is rather startling. As the guardian of children’s constitutional rights, the court could have instructed the government to make education mandatory rather than just advising the central government to “persuade the labourers to send their children to a nearby school.” The court’s sympathies should, according to the argument, should be with the children rather than the child labour employers.

Rajangam, Secretary, District Beedi Workers Union v. State of Tamil Nadu [11]was a letter petition addressed to the Supreme Court. The court issued specific directions in this instance, but since the entire process is “home-based” and difficult to monitor, it is unclear if the court’s directives had “any impact on the children participating in the beedi production” enterprise. The court did little to promote the cause of child labour in this industry by failing to provide the state government a clear mandate and instead allowing it to abolish child labour in beedi production in a “phased manner to be established by the state government.”.

WAY FORWARD

The ineffective execution of laws is without a doubt one of the most difficult parts of ending child labour in India. It is important to hold administrative leaders accountable for resolving this problem and to put in place suitable systems for evaluating their performance. The outdated regulations need to be changed since the proliferation of laws leads to confusion and insecurity and ultimately serves as a roadblock to resolving the child labour problem. A universal definition of child should be adopted since different laws establish distinct definitions of children, adding further confusion. The government should take harsh action against companies who utilise children in hazardous employment and impose strict sanctions on those who intentionally involve children in the worst types of child labour, such as “prostitution,” “modern-day slavery,” and so forth.

The Legislature should quickly put the principal judgement of the Judiciary into effect. The Judiciary’s recommendations were ignored by the Legislature in a number of cases. To solve such pressing issues, strong collaboration amongst them is necessary. The implications of child labour, their impact on society, the level of life, and the general development of the nation should also be widely known in society, especially among parents of young children. If India wishes to address the issue of child labour, it must use these methods to achieve the best results.[12] It takes special consideration and awareness of children’s challenges to prevent child exploitation and abuse. Children’s “rights and privileges” require “political will” and “public understanding.” Their “bright,” “healthy,” and “happy” present, as well as their “overall growth,” and advancement, are essential to our future.[13]

CONCLUSION

In conclusion, I think the Indian Supreme Court left several major gaps in its laws governing child labour. The Supreme Court has adopted a conciliatory stance toward the issue and has acknowledged that child labour will always exist in our nation, according to the analysis of child labour decisions provided above. It also didn’t discuss the government’s incapacity to put the law into practise or factors other than poverty that contribute to child labour. The decisions of the Supreme Court of India in these instances will help reduce child labour in the short term, but it is debatable whether the Court’s judgement would be adequate to permanently end the issue. India will need some time to properly outlaw child labour. To achieve this, as discussed India’s political elite must promise to successfully implement its rules and laws. To expose legal violations, “non-governmental organisations (NGOs),” “social activists,” and the “international community” will need to work together. The Indian Supreme Court may be extremely helpful in assisting the Indian government and other authorities in accomplishing this goal through PIL. To achieve the “triumphs and victories” Nehru promised on the eve of India’s independence, this will be a crucial step.[14]

[1] Judicial Response to Child Labour in India : A Human Rights Perspective Thomas Paul

[2] Indian Journal of Industrial Relations , Apr., 2001, Vol. 36, No. 4 (Apr., 2001), pp. 492-498

[3] Arjit Pandey, A Comparative Analysis of Child Labour Laws in US & India, 4 IJLMH 580, 570 – 591(2021)

[4] Ranjan K. Agarwal, The Barefoot Lawyers: Prosecuting Child Labour in the Supreme Court of India, 21 Ariz. J. Int’l & Comp. L. 663 (2004).

[5] Rashmi Shetty, Child Protection Laws in India, ActionAid (2021)

[6] 1991 SCC CRI 897

[7] Id.