1

CHAPTER - I
INTRODUCTION

Children are always considered next to the pious versions of the

Almighty who always strive to inculcate happiness, joy, innocence and
hope. The future of a nation is determined by the way it treats its children
and its women, after all, children imply a hope, a hope to strengthen not
only the economy of the country, but also to provide the country with
skilled human resources who have access to the basic amenities essential
for the existence coupled with the tenets of the education in India.
It is the moral duty of every citizen for the country to ensure that
the childhood of our children is protected and not marred with instances
like that of child labour in India which arise out of poverty and
helplessness.
The National Commission for Protection of Child Rights (NCPCR)
was set up in March 2007 under the Commission for Protection of Child
Rights Act, 2005, an Act of Parliament (December 2005). The
Commission's Mandate1 is to ensure that all laws, policies, programmes,
and administrative mechanisms are in consonance with the child rights
perspective as enshrined in the Constitution of India and also the UN
Convention on the Rights of the Child. The child is defined as a person in
the 0 to 18 years age group.
The Act provides not only for the constitution of a National
Commission but also for the establishment of State Commissions. It again
provides for in the preamble the intent to establish Children’s Courts also
for providing speedy trial of offences against children of violation of
child rights. The establishment of Commissions was persuaded by:
1. the Declaration on Survival, Protection and Development of Children
adopted by the UN General Assembly in 1990;
2. the acceding of 1992 by India to the Convention on the Rights of the
Child;
3. the National Charter for Children,2003;
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4. the special session of UN General Assembly which adopted an outcome

document titled “A World Fit for Children”.
In a civilized society the importance of child welfare cannot be
over-emphasized because the welfare of the entire community, it’s growth
and development, depend on the health and well-being of it’s child.
Children are a” supremely important national asset” and the future well-
being of the nation depend on how it’s children grow and develop.
Children need special protection because of their tender age and
physique, mental immaturity and incapacity to look after themselves.
There is a growing realization in every part of the globe that children
must be brought up in an atmosphere of love and affection and under the
tender care and attention ,so that they may be able to attain full emotion,
intellectual and spiritual stability and maturity and require self
confidence and self-respect and a balance view of life with full
appreciation and realization of the role which they have to play in the
national –building process without which the nation cannot develop and
attain real prosperity because a large segment of the society would be
then left out of the development process . In India this consciousness is
reflected in the provision enacted in the constitution especially in
Article15 (3), 21A, 23, 24, 39(e), 39(f), 41, 45 and 47. Justice V.R.
Krishna Iyer also advocated for the protection of children. In his words-
“The Hallmark of culture and advance of civilization consists in the
fulfillment of our obligation to the young generation by opening up all
opportunities for every child to unfold its personality and rise to its full
stature, physical, mental, moral and spiritual. It is the birth right of every
child that cries for justice from the world as a whole”.
Government of India has also in pursuance of these constitutional
provisions evolved a national policy for the welfare of children. This
policy starts with a goal-oriented perambulatory introduction.
The Nations children are supremely important asset. Their nature
and solicitude is our responsibility .Children’s programme should find a
prominent part in our National plans for the development of human
resources so that our children grow up to become robust citizens.
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Physically fit, mentally alert and morally health endowed with skills and
motivation needed by society. Equal opportunities for development to all
children during the period of growth should be our aim, for this would
serve our larger purpose of reducing inequality and ensuring social
justice.
National policy sets out the measures which the government of India
proposed to adopt towards attainment of the objectives set out in the
perambulatory introduction and they include measures designed to protect
children against neglect, cruelty and exploitation and to strengthen family
ties so that full potentialities of growth of children are realized with the
normal family, neighbourhood and community environment. Some of the
measures to be adopted towards the attainment of full and complete
development of the child are-
(i). The State shall take steps to provide free and compulsory education
for all children upto age of 14.Efforts will be made to reduce the
prevailing wastage and stagnation in schools particularly in the
case of girls and children of the weaker section of society.
(ii). Children who are not able to take full advantage of formal
education should be provided other forms of education suited to
their requirement.
(iii). Children shall be protected against neglect, cruelty and exploitation.
(iv). No child under 14 years shall be permitted to be engaged in an
hazardous occupation or be made to undertake heavy work.
(v) Existing laws should be amended so that in all legal disputes,
whether between parents or institutions, the interests of children
are given paramount consideration.
(vi) In organizing services for children efforts would be directed to
strengthen family ties so that full potentialities of growth of
children are realized within the normal family, neighbourhood and
community environment.
There has been equally great concern for the welfare of the children
at the international level culminating in the Declaration to the rights of
the child adopted by the general Assembly of the United Nations. Kofi
A.Annan, Secretary General of the United Nations, observed that- “There
 4

is no trust more sacred than the one the world holds with children. There
is no duty more important than ensuring that their rights are respected,
that their welfare is protected, that their lives are free from fear and want
and that they grow up in peace”.
The Declaration in it’s preamble points out that the child by reason
of his physical and mental immaturity needs special safeguard and care
including appropriate legal protection, before as well as after birth and
that mankind owes to the child the best it has to give proceeds to
formulate several principals. It provided, the child shall enjoy special
protection and shall be given opportunities and facilities, by law and by
other means, to enable him to develop physically, mentally, morally,
spiritually and socially in a healthy and normal manner and in condition
of freedom and dignity. So the Convention on the Rights of the
Child,1989 marked the culmination of the efforts to bring the
international community to recognize the needs of the children. Further
“Motherhood and Childhood are entitled to special care and assistance.
All children whether born in, or out of, wedlock shall enjoy the same
social protection” 1 .
However, the responsibility of the family, which is the natural and
fundamental group unit of society for the care and education of dependent
children, has been recognised by virtue of Article 10(1) of the
International Covenant on Economic, Social and Cultural Rights
(ICESCR). Article 10(3) of the ICESCR provides that:
“Special measures of protection and assistance should be taken on
behalf of all children and young persons without any discrimination for
reasons of parentage and other conditions. Children and young persons
should be protected from economic and social exploitation. Their
employment in work harmful to their morals, or health, or dangerous to
life or likely to hamper their moral development, should be punishable by
law. States should also set age limits below which the paid employment of
child labour should be prohibited and punishable by law.”
In the enactment of law for these purpose, the best interests of the
1
Art 25(2), Universal Declaration of Human Rights.2014
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child shall be the paramount consideration. Child shall also be protected

against all forms of neglect, cruelty and exploitation.
Children's rights are the perceived human rights of children with
particular attention to the rights of special protection and care afforded to
the young, including their right to association with both biological
parents , human identity as well as the basic needs for food, universal
state-paid education, health care and criminal laws appropriate for the age
and development of the child. Interpretations of children's rights range
from allowing children the capacity for autonomous action to the
enforcement of children being physically, mentally and emotionally free
from abuse, though what constitutes "abuse" is a matter of debate.
"A child is any human being below the age of eighteen years, unless
under the law applicable to the child, majority is attained earlier." The
term "child" does not necessarily mean minor but can include adult
children as well as adult nondependent children.
As minors by law do not have autonomy or the right to make
decisions on their own for themselves in any known jurisdiction of the
world. Instead their adult caregivers, including parents, social workers ,
teachers , youth workers and others, are vested with that authority,
depending on the circumstances. Some believe that this state of affairs
gives children insufficient control over their own lives and causes them to
be vulnerable. Louis Althusser has gone so far as describe this legal
machinery, as it applies to children, as "repressive state apparatuses".
Historic definitions of children's rights:
Consensus on defining children's rights has become clearer in the
last fifty years. A 1973 publication by Hillary Clinton (then an attorney)
stated that children's rights were a "slogan in need of a definition".
According to some researchers, the notion of children’s rights is still not
well defined, with at least one proposing that there is no singularly
accepted definition or theory of the rights held by children.
Children’s rights law is defined as the point where the law
intersects with a child’s life. That includes juvenile delinquency , due
process for children involved in the criminal justice system, appropriate
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representation, and effective rehabilitative services; care and protection

for children in state care; ensuring education for all children regardless of
their origin, race, gender, disabilities, or abilities, and; health care and
advocacy.
Types of rights:
Children's rights are defined in numerous ways, including a wide
spectrum of civil, cultural, economic, social and political rights. Rights
tend to be of two general types: those advocating for children as
autonomous persons under the law and those placing a claim on society
for protection from harms perpetrated on children because of their
dependency. These have been labeled as the right of empowerment and as
the right to protection. One Canadian organization categorizes children's
rights into three categories:
Provision: Children have the right to an adequate standard of
living, health care , education and services, and to play. These include a
balanced diet , a warm bed to sleep in, and access to schooling.
Protection: Children have the right to protection from abuse,
neglect, exploitation and discrimination. This includes the right to safe
places for children to play; constructive child rearing behavior, and
acknowledgment of the evolving capacities of children.
Participation: Children have the right to participate in
communities and have programs and services for themselves. This
includes children's involvement in libraries and community programs,
youth voice activities, and involving children as decision-makers.
In a similar fashion, the Child Rights Information Network , or
CRIN for short, categorizes rights into two groups-
(i) Economic, social and cultural rights, related to the conditions
necessary to meet basic human needs such as food, shelter,
education, health care, and gainful employment. Included are rights
to education , adequate housing, food, water, the highest attainable
standard of health, the right to work and rights at work, as well as
the cultural rights of minorities and indigenous peoples.
(ii) Environmental, cultural and developmental rights, which are
 7

sometimes called " third generation rights ," and including the right
to live in safe and healthy environments and that groups of people
have the right to cultural, political, and economic development.
Amnesty International openly advocates four particular children's
rights, including the end to juvenile incarceration without parole, an end
to the recruitment of military use of children , ending the death penalty for
people under 21, and raising awareness in the classroom.
The 1796 publication of Thomas Spence 's The Rights of Infants is
among the earliest English-language assertions of the rights of children.
Throughout the 1900s children's rights activists organized for homeless
children's rights and public education . The 1927 publication of The
Child's Right to Respect by Janusz Korczak strengthened the literature
surrounding the field, and today dozens of international organizations are
working around the world to promote children's rights.
The United Nations ' 1989 Convention on the Rights of the Child , or
CRC, is the first legally binding international instrument to incorporate
the full range of human rights—civil, cultural, economic, political and
social rights. It was adopted by the General Assembly of the United
Nations on 20 t h November, 1989. The Convention is a set of International
standard and measures intended to protect and promote the wellbeing of
children in society. Its implementation is monitored by the Committee on
the Rights of the Child . National governments that ratify it commit
themselves to protecting and ensuring children's rights, and agree to hold
themselves accountable for this commitment before the international
community. The CRC is the most widely ratified human rights treaty with
190 ratifications. Somalia and USA are the only two countries which have
not agreed to the CRC. The CRC is based on four core principles, namely
the principle of non discrimination, the best interests of the child, the
right to life, survival and development, and considering the views of the
child in decisions which affect them (according to their age and
maturity). The CRC, along with international criminal accountability
mechanisms such as the International Criminal Court , the Yugoslavia and
Rwanda Tribunals , and the Special Court for Sierra Leone , is said to have
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significantly increased the profile of children's rights worldwide.

India has the largest child population in the world. Well being of
children is a universal aspiration. It goes without saying that children are
the future of a nation. They are the ones who should be given more
importance than any other segment of the society. However the reality
tells a different story. There are children who can be seen labouring hard
for bare survival. Deprived of the opportunities that will help them
become a worthy citizen in the coming times, they live a life which
reflects a grim picture of the time to come. These children can be seen
every where in as condition which by no means be described to be fitting
for living a descent and dignified human life. The role of law also become
questionable in the sense that an essential segment of the society
continues to be deprived of some of the basic rights that other enjoy.
Despite the fundamental rights that adore the constitutional text, the
reality shows that these children are denied the rights that they should
otherwise be enjoying. The Indian scenario can best be described in the
words of Prof Myron Weiner who states that India is the largest producer
of illiterates and of child labour. Sivakasi is perhaps the most publicized
centre of child labour in India. Children are employed in the match,
fireworks and printing industries. 45,000 children below 15 years of age
work in Sivakasi or nearby workshops or cottages within their own
villages, perhaps the largest single concentration of child labour in the
world. Three-quarters of child workers are girls 2 . Children in the carpet
industry are reported to be branded with red hot iron rods, burnt with
cigarette butts and hanged upside down for minor faults 3 .
This is the factual position of child labour at the minimum and
revealed by studies. It is needless to emphasise that the problem of child
labour in India is acute, severe and multidimensional. It is not the result
of a single isolated factor. It involves various reasons. Elimination,
therefore, is not an easy task 4 .
Constitution of India guarantees several rights to the children
2
Myron Weiner ,” The Child and State in India” at p.13.
3
Mamta Rao, ” Law Relating to Women & Children”, 435(2nd Ed, 2015).
4
Ibid;
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including equality before law, free and compulsory primary education to

all children of the age group of six to fourteen years, prohibition of
trafficking and forced labour of children and prohibition of employment
of children below the age of fourteen years in factories, mines or
hazardous occupation. Our Constitution- makers, wise and sagacious as
they were, had known that the 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 made punishable. In this regard Article 23 of the Constitution is a
charter of human dignity and provides:
“(1) Traffic in human beings and begar and other similar forms of forced
labour are prohibited and any contravention of this provision shall
be an offence punishable in accordance with law.
(2) Nothing in this Article shall prevent the state from imposing
compulsory service for public purposes, and in imposing such
service the state shall not make any discrimination on grounds only
of religion, race, caste or class or any of them”.
Considering the fact that India is a welfare state, the founding
fathers of the Constitution recognized the importance of the rights of the
child in a nation’s development. Dr B. R. Ambedkar was far ahead of his
time and in his wisdom projected these rights in the Directive Principles
including children as beneficiaries. Their deprivation has deleterious a
effect on the efficacy of democracy and the rule of law. The Constitution
enables the state to make special provision for children and directs that
the policy of the state shall be such that their tender age is not abuse. The
government is committed to give children opportunities and facilities to
develop in healthy environment with required freedom and dignity and to
ensure that their constitutional and legal rights are protected.
Thus the Constitution mandates that every child shall have the right
to health, well being, education and social protection without any
discrimination on the ground of caste, birth, colour, sex, language,
religion, social origin, property or birth alone. Art.51-A, in the
fundamental duties of citizens of India, provides that citizens shall act in
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such a manner that the nation constantly rises to higher level of

endeavour and achievement. However, unless facilities and opportunities
are provided to children, the nation stands to lose human resources and
good resources.
In view of the national and international development and concern
for the children, the need for a National Commission for Protection of
Child Rights has been articulated by many social scientists and Non-
Governmental Organisations. The government has, accordingly, decided
to set up the National Commission for the protection of child rights for
better protection of their rights.
The National Commission for Protection of Child Rights (NCPCR)
emphasises the principle of universality and inviolability of child rights
and recognises the tone of urgency in all the child related policies of the
country. For the Commission, protection of all children in the 0 to 18
years age group is of equal importance. Thus, policies define priority
actions for the most vulnerable children. This includes focus on regions
that are backward or on communities or children under certain
circumstances, and so on. The NCPCR believes that while in addressing
only some children, there could be a fallacy of exclusion of many
vulnerable children who may not fall under the defined or targeted
categories. In its translation into practice, the task of reaching out to all
children gets compromised and a societal tolerance of violation of child
rights continues. This would in fact have an impact on the program for the
targeted population as well. Therefore, it considers that it is only in
building a larger atmosphere in favour of protection of children's rights,
that children who are targeted become visible and gain confidence to
access their entitlements.
DEFINATION OF CHILD
It is essential that we first understand the age within which person
is defined as child. To know who is a child let us refer to Article 1 of the
Convention on the Rights of the Child, the basic document which states
that every human being below the age of 18 years is a child unless the law
applicable to the child majority is attained earlier. The term ‘child’
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generally refers to a minor who is immature and has not attained the age
of eighteen years .It is also defined using age criterion. Various countries
has defined child by the age of child under their legal systems but it is
generally accepted that a person who is below the age of eighteen years
is a child.
India has also defined the age of “child “under different statutes.
These statutes specify different ages of child according to their aim and
objects. The choice of the cutoff age seems to depend on the range of law,
policy and administrative considerations 5 .
Some of the important statutes which include provisions specifying the
age of the child are discussed below:
THE CONSTITUTION OF INDIA AND LEGISLATIVE PROVISIONS
The Constitution of India prohibits employment of children below
the age of fourteen years in any factory or mines or other hazardous
employment 6 . Article 45 states that the state shall endeavour to provide
free and compulsory education for all children till they complete the age
of fourteen years.
THE INDIAN PENAL CODE, 1860
Section 82 7 and section 83 8 of the Indian penal code defines the
age of child to confer immunity from criminal liability on child offenders.
This immunity is based on the principle of juvenile justice which
has its base in provisions of the constitution. Article 15(3) provides that
”Nothing in this article shall prevent the state from making any
provisions for women and children.
Directive principles of state policy requires that” the tender age of
children are not abused 9 ” and “that children are given opportunities and
facilities to develop in a healthy manner and in conditions of freedom and
dignity and that youth are protected against exploitation and against

5
Ved kumari,” The Juvenile Justice System in India from Welfare to Rights”, 14(2014).
6
Article 24,Constitution of India.
7
“Nothing is an offence which is done by a child under seven years of age”.2014
8
“Nothing is an offence which is done by a child above seven years of age and under twelve, who has
not attained sufficient maturity of understanding to judge of the nature and consequences of his conduct
on that occasion.”
9
Article 39(a),Constitution of India.2013
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moral and material abandonment 1 0 .”

Under Section complete immunity is granted to children on the
pragmatic approach of the state that children below seven years are not
capable of understanding the nature and consequences of their acts, and
hence they do not have the capacity to have requisite mens-rea 1 1 .The
”consequences of his conduct” does not mean penal consequences but the
natural consequences which result from the act.
The Juvenile Justice (Care & Protection of Children )Act, 2000
Under the Act “Juvenile” or “Child” means a person who has
not completed eighteenth year of age 1 2 . This amendment was brought to
make it in accordance with the definition in the UN Convention on the
Rights of the Child (hereinafter “CRC”).
This Act is not a penal legislation which imposes punishment on
children for their action. In its operation, however, the promised care,
protection and opportunities for development and rehabilitation are
provided through institutionalization of children and it is well recognized
that institutionalization, even if for protective purposes, does result in
curtailment of freedom 1 3 .
The Children (Pledging of Labour) Act, 1933
The Act has special importance in respect of the street children as
it’s object is to eradicate the evils arising from the pledging of labour of
young children by their parents employers in lieu of loans or advances 1 4 .
In present lot of children are sold by their parents who land up in
becoming street children and these children sold in lieu of loans etc. only.
Under this Act, Child means person who has not completed the age
of 15 years 1 5 . So the Act aims to eradicate the evil of pledging the labour
of a child below 15years of age.
Child Labour(Prohibition and Regulation)Act,1986
According to this Act the person who has not completed his/her
10
Article 39(f), Constitution of India. 2013
11
V. Suresh & D. Nagasaila (ed.), P.S.A . Pillai’s Criminal Law 100(2014).
12
Section 2(k), Juvenile Justice (Care and Protection of Children) Act, 2010.
13
Ved Kumari, “The Juvenile Justice System in India from Welfare to Rights”, 14(2014).
14
P.L.Mehta & S.S.Jaswal, ”Child Labour and The Law:Myth & Reality of Welfare”, 55(1996).
15
Section 2, Child Labour(Pledging of Labour)Act,1933.
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fourteenth year of age is a child 1 6 . M.C. Mehta v. State of Tamil Nadu 1 7 ,

noted that, menace of child labour was wide spread .Therefore, it issued
wide ranging directions in the context of employment and exploitation of
children in Sivasaki, prohibiting employment and exploitation of children
below the age of 14 making arrangements for their education by creating
a fund and providing employment to the parents or able bodied adults in
the family. At the same time in N. Bhageerathan v. State, 1 8 it was held
that if an accused employer is unable to prove that children employed
were not below 14 years, he can be convicted for the offence of
employing child labour.
The Employment of Children Act, 1938
This Act was enacted to prevent employment of children in
hazardous employment and unhealthy occupations. The Act prohibits the
employment of children below fifteen years of age in any occupation
which is connected with the transport of passengers, goods 1 9 . The Act also
prohibits employment of children below the age of 14 in workshops
connected with bidi making, carpet weaving etc 2 0 .
The important point to note is that, these provisions do not apply
to workshops where the work is done by the occupier with the aid of his
family only or to any school established, aided or recognized by any state
government. This is a loophole in the definition as it does not make
provision for education in a school where they work but only permits
government school to take their labour. Most of these children who work
in these small industries and schools sleep on streets at night.
The Street Children (Prohibition of Rights) Bill, 2001
Section 2(c) of the bill defines child as child who is below the age
of 18.This is in conformity with the age of child specified in United
Nation Convention on the Rights of the Child (hereinafter ”CRC ”).
According to the Article 1 of the CRC defines a “Child” as all human

16
Section 2(ii), Child Labour(Prohibition and Regulation) Act,1986.
17
AIR 1996 SCC 756.
18
AIR 2009 Cri. L. J.632(Mad).
19
Section 3(3), Employment of Children Act, 1938.
20
Ibid.
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beings under the age of 18 years, unless national grants majority at an

earlier age. It attempts to protect all children below the age of eighteen,
and to recognize that the child is an individual holder of human rights and
fundamental freedoms. But since Article says”……….unless national
grants majority at an earlier age”, it reduces the uniformity in legislations
as we can in other legislations defining the age of child in India.
The Factories Act, 1948
The Factories Act, 1948 is an important Act which provides for
prohibition of employment of young children and prescribes working
hours for minors. Section 67 provides that:
“No child who has not completed his fourteenth year shall be
required or allowed to work in any factory.” Therefore a child should be
at least fourteen years of age to work in a factory.
Mines (Amendment) Act, 1952
A person below the age of eighteen years is a child 2 1 . The Mines
Act, 1952 also regulates the employment of children in mines. It prohibits
the employment of persons below 18 years of age to work in any mine and
also prohibits the presence of any child in any part of a mine which is
below ground or in any open excavation in which any mining operation is
being carried on.
The Motor Transport Workers Act, 1961
The Motor Transport Workers Act, 1961 also contains a provision
according to which employment of a child who has not attained the age of
14 cannot be allowed. According to the Act ‘child’ means a person who
has not completed his fourteenth year 2 2 .Further Section 21which prohibit
employment of children reads as:
“No child shall be required or allowed to work in any capacity in
any motor transport undertaking.”
Above are some of the provisions which define the age of child. If
we analyse the above definitions, it is clear that all the legislations has
specified different ages for person to be included in definition of child.

21
Section 2(e), Mines (Amendment) Act, 2015.
22
Section 2(c), The Motor Transport Workers Act, 2012.
 15

The cut off of age seems to depend on the range of law, policy, and
administrative considerations and presupposes coincidence of mental
maturity. This difference in definition prohibits children from taking
benefit under all the Legislations. If there is one definition it would be
better for the children to get the benefits under it.
 16

CHAPTER - II
MEANING AND CONCEPT OF
CHILD LABOUR

“Children are the greatest gift to the humanity and they are the
representation of the beautiful creation of God”. They are the most
tender, gentle and fragile one and needs to be handled and protected with
immense care and delicacy. The welfare of the entire community, its
growth and development depends on the health, strength and well being of
its children. The prosperity and development of any country would
certainly depend upon ‘human development’ or the well being of its
people in general and children in particular, than the development of their
military or economic strength or the splendour of their capital cities and
public buildings. In order to protect and secure human Rights of the
children, Universal Declaration of Human Rights, adopted way back in
1948, had proclaimed that childhood was entitled to special care and
protection. The UN Convention on the Rights of the child, adopted in
1989, proclaims in Article 6, that every child has the inherent right to life
and that the state parties shall ensure to the maximum extent possible the
survival and development of the child.
Article 32 of the Convention on the Rights of the Child mandates
that the State parties to recognise the right of the child to be protected
from economic exploitation and from performing any work that is likely
to be hazardous or to interfere with the child’s education, or to be
harmful to the child’s health or physical, mental, spiritual, moral or
social development. The Government of India has ratified United Nations
Convention on the Rights of the Child in December 1992 and undertakes
to initiate measures to progressively implement the provisions of
Article.32. Various Constitutional provisions, hundreds of legislations,
policies and programmes have been brought into protect the “best
interest” of children.
Since centuries child labour is prevailing across the World and it is
a Universal problem, its practice in any society is violation of human
rights as it is barbarous, illogical, inhuman & degrading the ethos of the
 17

children. Thus the child labour is not only a social evil but it is a stigma
on the childhood & exploitation of the children.
Meaning of the Child Labour
Sri.V.V.Giri former President of India characterises that, child
labour is a “economic practice” and “social evil”.¡ 2 3 Firstly, ‘economic
practice’ signifies employment of Children in gainful occupations with a
view to adding to the total income of the family. Secondly, ‘social evil’
refers to, character of the jobs in which children are engaged, the danger
to which they are exposed and the opportunities of development of which
they have been denied. In the present situation children are denied even
their basic and fundamental needs. Children are innocent, vulnerable and
dependent, and they are unable to understand their rights as such, during
their formative age they are prone to exploitation. Thus, child labour has
become a hard reality and global phenomena. The two main approaches
which define child labour are (1) Any labour force activity by children
below a stipulated minimum age and (2) Any work, economic or not, that
is injurious to health, safety and development of children.
Kulashresta says that the ‘Child Labour’ is at times used as a
synonym for ‘employed child’ or ‘working child’ whereas Gray Rodgers
and Gay standing have classified 24
child labour into four categories
which include (1) Domestic work; (2) Non-domestic work and non-
monetary work; (3) Bonded Labour; 4) Wage Labour. 2 5 Child Labour is
done by any working child who is under age specified by the law. The
word, ‘work’ means full time commercial work to sustain self or add to
the family income. Child labour is a hazard to a child’s mental, physical,
social, educational, emotional and spiritual development. Broadly any
child who is employed in activities to feed self and family is being
subjected to “child labour”. 2 6
Technically the term ‘child labour’ is used for children occupied in

23
P.L.Mehta, S.S. Jaswal, Child Labour and The Law, New Delhi: Deep and Deep Publications, 1996,
p.13. 132
24
P.K.Padhi, “Child Labour: Yesterday, Today and Tomorrow”, Journal Section Lab. I.C., 2004, p.177
cited in Kulashresta J.C: “Child Labour in India”, 1978, p.1.
25
Ibid, cited in Rodgers Gray and Standings gay; “Economic Roles of Children in Low Income
Countries”, International Labour Review 120 (I), Jan-Feb.1981.
26
http:/www.childlabour.in/what is child labour.htm visited on 10.27.2009 p.1.
 18

profitable activities, whether industrial or non-industrial. It is especially

applicable for activities which are detrimental to their physical,
psychological, emotional, social and moral developmental needs. It has
been researched and proved that the brain of a child develops till the age
of ten, muscles till the age of seventeen and his lungs till the age of
fourteen. To be more specific, any activity which acts as a hazard for the
natural growth and enhancement of these vital organs, can be considered
harmful for natural human growth and developments and termed - ‘child
labour’. 2 7
According to Committee on Child Labour, “Child labour” broadly
defined as that segment of child population in work either paid or
unpaid.6 The term child labour is defined as the work which deprives
children of their childhood, their potential and their dignity, and that
which is harmful to their physical and mental development.
Homer Folks, the Chairman of the United Nations Child Labour
Committee, defined child labour as “any work by children that interferes
with full physical development and their opportunities for a desirable
minimum level of education of their needed recreation”.
According to ILO’s comprehensive definition of child labour,
“Child Labour includes children prematurely leading adult lives, working
long hours for low wages under conditions damaging to their health and
to their physical and mental development, sometimes separated from their
families, frequently deprived of meaningful education and training
opportunities that could open up for them a better future”. 2 8
In Encyclopaedia of Social Sciences (1959) Child labour has been
defined “When the business of wage earning or of participation in itself
or family support conflicts directly or indirectly with the business of
growth and education, the result is child labour. The function of work in
childhood is primarily developmental and not economic.10 Children’s

27
http:/www.childlabour.in/ child labour the real situation .htm visited on 10.27.2009, p.2
28
Archana Mehendale, “ Elimination of Child Labour- A Study of the Role of Law and Non-
Governmental Organizations from a Perspective of the Rights of the Child”, Bangalore: National Law
School of India University, 1997, p.2.; also see Encyclopaedia of Social-Sciences ( 1959) p.413.
 19

work, then, as a social good, is the direct, antithesis of child labour as a

social evil. 2 9
The ‘Operation Research Group’ based in Baroda-India defines a
child labour that “A Working Child is one who was enumerated during the
survey as a child falling within the five to fifteen age bracket and who is
at remunerative work, may be paid or unpaid, and busy in any hours of a
day within or outside family”. 3 0
Article.24 of the Constitution accepting the fact of prevalent child labour
in India provides that “no child below the age of fourteen years shall be
employed in work in any factory or mine or engaged in any other
hazardous employment”.
The Committee on Child Labour provides “child labour involves the
use of labour at its points of lowest productivity; hence it is an inefficient
utilisation of labour power. Child labour represents pre-mature
expenditure rather than saving”. It concludes that “the argument that
employment of children increases the earning of the family and keeps
children away from children is misleading. It glosses over the fact that
child labour stunts their physical growth, hampers their intellectual
development and by forcing them into the army of unskilled labourers or
blind alley job condemns them to low wages of their lives...Child labour
is economically unsound, psychologically disastrous and physically as
well as morally dangerous and harmful”. 3 1
“Child Labour” according to an elected representative of the
people, is no longer a medium of economic exploitation; it is necessitated
by economic compulsions of the parents and in many cases that of the
child himself. They work because they must, for their own survival and
that of their families. Therefore, any attempt through legislation will not

29
Thomas Paul, “Child Labour-Prohibition V. Abolition: untangling the Constitutional Tangle”,
Vol.50 (2008) New Delhi: Journal of Indian Law Institute ,New Delhi, April-June 2008; No.2 p.146
also see the Report of the Committee on Child Labour p.10 ( Government of India) Gurupadaswamy
Committee Report , 1979.
30
Jain Mahaveer, Child Labour in India – A Select Bibliography, Noida: National Labour Institute,
(2016), p.12.
31
Supra note 11, pp 146-147.
 20

be successful. 3 2
The Concept (Problem) of Child Labour
The concept of child labour is complex in its nature. The word
‘child labour’ is a combination of two components, i.e. ‘child’ in terms of
his chronological age, and ‘labour’ in terms of its nature, quantum and
income generating capacity. 3 3
The word ‘labour’ is a controversial concept to define, especially in
the context of child labour, child work and child labour often used
synonymously. However all work is not bad for children because some
light work, properly structured and regulated, is not child labour. This
implies that work which does not detract from other essential activities
for children such as leisure, play and education are not child labour.
‘Child labour’, therefore, is the work which involves some degree of
exploitation namely, physical, mental, economic and social and therefore,
impairs the health and development of children.16 It is pointless to try
and distinguish between child labour and child work or between
hazardous and non-hazardous employment. Work that is seemingly non-
hazardous for adults becomes hazardous for children because they have no
negotiating power. 3 4 With regard to the conceptual and definitional
problems concerning child labour there are two schools of thought.
According to the first school known as abolitionist school, education
should be made a fundamental human right of every child in 5-14 age
group, and any child who is out of school should be treated as a potential
working child. They feel that elimination of child labour and attainment
of compulsory primary education are two sides of the same coin and one
cannot be achieved without achieving the other. According to them, the
distinction between hazardous and non-hazardous work is immaterial.
According to the second school known as reformist school, child labour is
a ‘harsh reality’, which means, given the socio-economic conditions of

32
Ibid, p.159 also see, Lok Sabha debates, Seventh Session ( 8th lok Sabha), Vol. XXIII, No.22, Col. 329,
331, ( Dec, 3. 1986).
33
P.P. Jayanti, “Child Labour A Socio-Legal Study”, Vol.I (1998) Kerala University Journal of Legal
Studies, Department of Law, University of Kerala, Tiruvantapuram, p.143.
34
Ibid, p.145.
 21

India (like poverty, unemployment and illiteracy) it is impossible to root

out the problem of child labour altogether. They feel that elimination of
child labour should be viewed as a long-term goal to be achieved
progressively. Hence, they advocate a dual approach of prohibition of
child labour in hazardous work and regulation of it in non-hazardous
work. 3 5
Forms of Child Labour
Children work in three sectors of the economy 3 6
(a) The Agrarian sector :
The agrarian sector in India is characterised by poverty, illiteracy,
unemployment, highly skewed distribution of land-ownership, traditional
modes of production, prevalence of old customs and traditions, system of
usury, etc. Several forms of child labour such as invisible, migrant,
bonded etc. emerge from this sector, which encompasses such time-
consuming activities for boys as looking after animals, gathering wood
and fodder, sowing and reaping, protecting fields from pests, weeding,
etc. For girls, the activities are milking animals, cooking, and looking
after younger children. The rural child is working child and work is a
fundamental part of his or her existence, irrespective of whether it is non-
monetary. It also, therefore, means that education is a casualty for such a
child.
(b) Industrial sector :
Industrial sector is a growing level of urbanisation as a result of
migration from rural to urban areas and from smaller towns to bigger
cities, where industries are being set up. Another feature is the dispersal
of industries into family-based units. This again causes the emergence of
various forms of child labour, such as invisible, wage-based child labour
working under conditions of acute exploitation in the industries, children
of marginalised families working as self-employed children or under-
35
S. Pandiaraj “Elimination of Child Labour in India: Towards a glorious illusion” ? Vol.46, (2006)
Indian Journal of International Law, see also Laxmidhar Mishra, Child labour in India, New Delhi:
Oxford University Press, 2000, p.18.
36
Helen R.Sekar, Child Labour Legislation in India - A Study in Retrospect & Prospect, Noida: V.V.Giri
National Institute of Labour, 1997, pp 13-15.
 22

wage employment in the services sector.

(c) Service sector:
The services sector actually has a certain overlap with the
industrial sector. A majority of children in this sector are self-employed
because its very nature provides relief from direct supervision. It also
provides autonomy and freedom of control over resources. Such children
are found to be working both in the urban as well as rural areas. In this
sector, child labour can take such forms as invisible, self-employed or
under wage-based employment, with children changing jobs at regular
intervals. This is particularly true in urban areas.
The UNICEF has classified child work into three different
categories.
(i) With in family in which children are engaged without pay in
domestic/household tasks, agricultural/pastoral work, handicrafts/
cottage industries etc.
(ii) With the family, but outside the home in which children do
agricultural/pastoral work which consists of (seasonal/full time)
migrant labour, local agricultural work, domestic service,
construction work and informal occupations - e.g., laundry/
recycling of waste - employed by others and self-employed.
(iii) Outside the family in which children are employed by others in
bonded work, apprenticeship, skilled trades (carpet, embroidery,
brass/copper work), industrial/unskilled occupations/mines,
domestic work, commercial work in shops and restaurants, begging,
prostitution and pornography.
Each Form of child labour has its own peculiar features, which are
in the forms of domestic labour, agriculture labour, migrant labour,
bonded labour, wage based labour, self employed labour and invisible
labour.
Elements of child labour
Child labour involves one or more of the following elements 3 7 (1)
Work by very young children, (2) Long hours of work on a regular full-

37
Supra note 11, see also Anker and Melkas, “Economic Incentives for Children and Families to
Eliminate Child Labour” 32 ( ILO, 1996)
 23

time basis, (3) Hazardous working conditions (Physically and mentally),

(4) No or insufficient access, attendance or progress in school, (5)
Abusive treatment by the employer, (6) Work in slave like arrangements
(bonded labour)
Factors leading to child labour
The Indian problem of child labour is not a result of any single
isolated factor. It is a multi dimensional problem that involves various
reasons contributing to it in a variety of ways. Some of the factors
contributing and responsible for prevalence and perpetuation of child
labour are: continued poverty, illiteracy and ignorance of poor parents,
population explosion-large family size, low family income, the tradition
of making children learn the family skill, lack of political will and
weak/tardy enforcement of laws, un-employment/under-employment,
migration, absence of provision for universal compulsory primary
education etc. 3 8 Thus, the problem of child labour is acute and multi-
dimensional. The Government of India has conceded the existence of
child labour as “harsh reality”. The debate about whether child labour
should be banned or regulated is not new. It surfaced in 1985, when the
Government of India claimed that ‘child labour was a harsh reality’ and
found it more prudent to regulate rather than ban it; the Child Labour
(Prohibition and Regulation) Act, 1986 - an Act without teeth and
innumerable loopholes - was passed. 39

Child labour has been in existence since time immemorial in one

form or the other. In pre-industrial era children used to help their parents
in family work, farm operations or family occupations. Even in the post
industrial era, it was existing on account of its cheapness and profitability
of its employment.26 P.A. Sangma former Lok Sabha Speaker, says ‘child
labour practice was only a symptom of a more deep-seated disease of a
complex nature’. Across the globe, to a less or greater degree, visible or

38
D.Venkateshwar rao, Child Rights – A perspective on International and National Law, New Delhi:
Manak Publications Pvt. Ltd., 2004, p.5.
39
Ibid, see also Gurupada Swamy Committee Report on Child Labour (1979), Ministry of Labour,
Government of India.
 24

invisible, admittedly or otherwise child labour exists. 4 0

Child labour is a complex socio-economic and universal
phenomenon. It is the need of the hour to find out the causative factors
leading to child labour in a scientific, rationalist, and pragmatic
approach. It has been accepted that the intrinsic nature of the worst form
of child labour is bearing on socio-economic and other multiple causes. It
is a mixture, of both illiteracy and poverty. The problem of child labour
is the symptom of the disease which is wide spread due to exploitative
structure, lopsided development, iniquitous resource ownership with its
co-relates of large scale of unemployment and abject poverty among the
countries. The existing international economic order perpetuates this
‘harsh reality’ because powerful multi-national corporations operate and
use child labour directly or indirectly, to maximise profits and minimise
costs. The poor third world countries faced with acute foreign exchange
crisis permit and encourage export of goods using cheap and vulnerable
child labour in the hope of improving their foreign exchange reserves and
balance of payments crisis. Indian carpet industry, lock industry, gem and
precious metals, etc. are examples. It is true that extreme poverty and
employment force the poor to send their children to work as a part of
their survival strategy. Greed for profit and desperate competition for
markets in the developed world encourage employers to use child labour
for economic advantage. Lack of firm commitment to the goal of
eradication of child labour results in a haphazard and ineffective
intervention from the government which is quite conducive to the interest
of M.N.G. and other vested interests. 4 1
There are various socio-economic and cultural factors which force
children into work and these factors can be broadly classified into supply
side factors, refer to the conditions under which families are engaging
children in work. i.e. families force them to send their children for work.

40
Sheela Srivastava, “ Child Labour as a Socio Economic Problem in India” cited in Mahaveer Jain,
Sangeeta Saraswal “Elimination or Empowerment-Child Labour from Different Perspectives” New
Delhi, p.4
41
Tapan Kumar Sandilya and, Shakeel Ahmed Khan, Child Labour A Global Challenge, New Delhi:
Deep and Deep Publications Pvt. Ltd., 2006, p.21.
 25

Demand side factors refer to the preference of employers for employing

children.
Poverty
Poverty is the womb of all illness. In addition, poverty is a double
edged weapon in that the poor victim of illness loses his daily winning
capacity as well making him/her poorer at the end of the day. 4 2
Poverty as an extreme human condition has always evoked immense
social interest. Poverty is a single major cause of child labour; this is a
major contributing factor and has many dimensions. The Institution of
Public opinion conducted a survey in 1969, which showed that 41.2
percent of Indian population was under poverty line. Half of these
belonged to the Scheduled Caste and Tribes. In village a vast majority of
agriculture labour belongs to these communities. 4 3
A Seminar on the subject organised by National Institute of Public
Co-operation and Child Development, New Delhi on November 25 to 28,
1975 also came to the conclusion that, millions of families were below
poverty line and they had to deploy their children in the labour market in
order to eke out a bare subsistence. 4 4
The phenomenon of child labour clearly demonstrates vicious cycle
of poverty and unemployment. Poverty is the main reason for which the
children are forced to work. Their income is necessary for the survival of
their family members and also of themselves. Poverty is most often
supplemented by other socio-economic factors to expose the child to
manual jobs.
Millions of people in this country live in a state of abject poverty,
without food, shelter, employment, health care and education. According
to a UN Report, “1/5th of the population in a developing country, like
42
Prof. B.N.Hegde, “Hungry Mouth’s Day”, Vol.55, No.12, (2007) Mumbai: Bhavan’s Journal Bharatiy
Vidya Bhavan, p.37.
43
C .K.S hukl a, S .Ali , C hil d L abour; Soci o- Economi c Di mensi ons, New Del hi :
S waroop and S ons, 2006, p.178; see al so Inst it ut e of Publ i c Opi ni on, Mont hl y
C omm ent ary on Indi an Econom i c C ondit i ons, Decem be r 1973.
44
Nat i onal Insti t ut e of Publ i c Co- operat i on and Chi l d Devel opm ent (NIP CC D –
S em i nar R ecom m endat i ons). (2018)
 26

ours, are hungry every night, 1/4th do not have access to basic amenities
like drinking water; and 1/3rd live in a acute poverty”. According to the
Human Development Report 2005, every hour 1200 children die, one
Crore children every year do not live to see their 5th birthday.
Another important factor for the perpetuation of child labour is the
rising rate of dropouts from school of children of the poor families. The
high rate of dropouts is invariably a consequence of poverty. In most
places, schools are situated in very remote areas and are not accessible to
a sizable population. There was lack of infrastructure facilities like
building, equipments, furnitures, teachers, staff, drinking water, toilets
etc. Pathetic conditions in school education system hold little attraction
for children. In rural areas schools and classes do not run regularly due to
the absence of teachers frequently. Schooling of children becomes
burdensome for the poor families and economically expensive and more
so schooling the children deprives them of the income that accrues from
child labour. The poverty alleviation programmes launched by
Government through NGO’s are not properly implemented and its benefits
do not reach the real, needy and deserving sections of the society,
consequently children are economically exploited.
Most traditional families believe that a child is born to them to earn
more for family. The child is considered as just another source of income
and traditional business families in fact put the child into the business
rather than send them to school. Under the protext of training them, they
make them work long hours, sometimes resorting to physical torture in
case the child makes mistakes.
Rampant unemployment and under employment of parents who
force their wards to some odd jobs to supplement the meagre income.
Thus, whenever the family is in need to fulfill its basic needs like food,
clothing and shelter, it is inevitable for the members and compelled to
support the family income, by pressing the children to work and earn
wages. The rural landless poor and urban destitutes send their boys and
girls for wage earning.
There is another argument which advocates that, poverty is a cause
 27

but often “perceived poverty” is a cause for child labour. If the poverty
was the only cause of child labour all children from poor families would
have been working as child labour. Incidence of child labour is rare than
the incidence of poverty. Poverty and child labour thus always begets
each other and tend to reinforce. Thus child labour is not only an
economic compulsion of poor families, it is also the consequences of
extreme social and economic exploitation.36 Poverty of the households
may be due to several factors:
(a) Inadequate income of the family;
(b) Unemployed adults;
(c) Absence of scheme for family allowances; and
(d) Large family etc 4 5 .
Migration and Child Labour
There is a close nexus between migration and child labour and
migration is one of the major contributory factors to child labour.
Migration refers to the movement of workers from one place to another.
There are various factors responsible for migration of parents and
children. Again poverty, large family size, with low family income and
non availability of work in the village compels the parents to migrate to
urban areas. The adverse financial position of parents compels them to
borrow from the village money lender who charges high rate of interest
on the loans advanced to the villagers and a pressure from the side of
money lender to repay the debts is likely to compells the parents to send
their children to earn, since no work is available in the villages.
Due to liberalisation, privatisation and globalisation and scientific,
technological advancement and development in industries, Village
handicrafts no longer continued and attraction of city life and
comparatively higher income opportunities are reasons for migration of
parents to cities. Consequently parents due to the economic compulsion
induce their children to work at the nearest area of the city or send them
to sub-urban places. Debts and financial liabilities, economic compulsion
and to seek better employment, to learn technical work and no work at the
45
The St at e of t he Worl d’s C hi l dren, 2005-C hil dhood under Threat UNIC EF , p.17.
 28

place of origin were the factors leading to migration and migrant children
work and earn concentrating mainly on constructions and in service
sectors, domestic works etc. and some child labourers work as, hawkers,
shoeshine boys, balloon sellers, flower vendors and some migrant
children are beggars, ragpickers etc. When the family head or others move
to urban cities, such parents make with their children and they face the
problem of lack of shelter, hunger, unemployment etc. which forces the
children to join the labour force. So migration is both push as well as pull
factor for child labour.
Employers Preference for Child Labour
It is one of the demand factors for causation and perpetuation of
child labour. The most important objective of the employer is to earn
more profit on limited expenditure. Employer perfectly knows that child
labour is cheap and adult labour is expensive. Hence he prefers to employ
child labour rather than adults by payment of low/minimum wages and
displacing the adults from labour market. He prefers to employ child
labour as children are innocent, docile, disciplined and sincere and don’t
have any union and cannot question the authority of employer.
Employer knows that economic compulsion of the families of
having extreme poverty. They watch out for exploiting the parental
economic compulsion and knows that children of backward families are
more tolerant can be put on difficult jobs for long hours, even on low
wages. Secondly, they have understood the productive quality of children
who do not raise grievances pertaining to their working conditions 4 6 .
It is a employers’ greed/avarice to exploit un-unionised disciplined
child workers who work for long hours and for lower wages to make more
profit at the cost of health and strength of children. There is also another
reason that children work faster and have ‘nimble fingers’ needed in
certain types of work especially for making knots in carpets than the
adults.
Anker and Melkas have given following reasons for employers

46
A.N.S i ngh, T he C hil d rag Pi ckers, S oci o-Econom i c P erspect i ves and Int ervent i on
S t rat egi es, 1996, p.26.
 29

preference for child labour, 4 7

(A) Awareness and Innocence
(i) More docile and less troublesome. (ii) Greater willingness to do
repetitive, monotonous work. (iii) More trustworthy and innocent, so less
likely to steal. (iv) Less absenteeism (none if bonded). (v) Do not form
trade union.
(B) Tradition
(i) Tradition of hiring child labour by employers. (ii) Traditional
occupations have children working along side parents. (iii) Social role of
employer to provide jobs families to families in the community. (iv)
Employers need labourers. Children are available and ask for jobs so why
not higher child labour
(C) Physical Characteristic
(i) Better health as young, health is not spoiled by work.
(ii) Irreplaceable skills (though this notion is not true in fact).
Jomtein marked the emergence of an International consensus that,
education is the single most vital element in combating poverty,
empowering, protecting children from hazardous and exploitative labour
and sexual exploitation, promotion of human rights and democracy,
protecting the environment and influencing population growth. 4 8
Conclusion
The phenomenon of child labour is multi-dimensional complex
problem and deep rooted in the socio-economic fabric of the society. So it
may not be wise to rely on one single approach to deal with it. There are
many factors responsible to this complex problem, so a comprehensive
integrated approach is required to tackle and combat child labour. This
can be done only by bringing attitudinal change, and social awareness and
rigorous campaign against the problem of child labour. Thus, it requires
honest effort and strong commitment and support from all concerned.

47
M.H.R ahm an, Kant a R ahm an, S. Meharaj B egum , C hil d L abour and C hi l d Ri ght s-A
C ompendi um, New Del hi : Mani k P ubli cat i ons, 2002, p.18.
48
S heeba P il l ai , “R i ght To Educat i on And The Fi shi ng C om m uni t y In Keral a”, Vol .1,
(2008) Mysore Uni versi t y L aw Journal , p.95.
 30

CHAPTER-III
HISTORICAL PERSPECTIVE

Child labour is not a new phenomenon to our age, it has existed in

one form or another in all historical times" children in India have been
associated with work from time immemorial. The work they were asked to
undertake used to provide them an opportunities for direct fulfilment of
their natural abilities and creative potentialities and this was conducive to
their healthy growth and development. The objective of the present paper
are: (1) To describe the historical aspect of child labour in different era
in India. (2) To analysis the global view on child labour The present
paper represent an historical cum descriptive. It is to enquire in to the
social phenomenon on with care i.e. to scrutinize the existing material
related to the phenomenon under investigation so as to gain new in sight
into it. The literature of the paper were drawn a wide variety of secondary
sources. The employment of children in India, in the form of slavery, was
mentioned even in Kautilya's Arthashastra of 3rd Century B.C. in
medieval period, children were normally placed as trainees under artisans
and craftsmen certain crafts depends totally on the employment of
children. In agrarian society, children work according to their capacities,
and their work was always considered as a part and process of
socialization under quasi – feudal relation of production, parents
obligations were often involved all families working for land lords. In
18th Century industrial revolution in England, gave a new turn to the
history of mankind it brought a change in the overall economic and social
order. Which was for distinct them earlier period. After industrial
revolution, the large number of children therefore was appointed by the
mill owners and later by factory owners. Secondly, the demand for child
labour in 'agricultural' sector also increased due to the migration of adult
men flok to industrial towns. The terms 'child labour' is at times used as a
synonym for 'employed child' or 'working child' in this sense it is co-
extensive with and work done by a child for economic gain. But more
 31

often them not, the term "child labour" in used is a social sense. It
suggests some thing which is harmful, unjust and full of exploitation. The
child labour (regulation and prohibition act, 1986) charactrised the child
labour as a 'National challenge' or a national concern. We have taken up
this challenge and the struggle is still in its infancy stage. The national
child labour programme (NCLP) inaugurated in august 1987 was a step in
the right direction. The international programme on elimination of child
labour IPEC take our attention to the ultimate objective or any response
to the problem of child labour.
Child labour is a type crime in which children are forced to work in
their very early age and perform the responsibilities just like adults by
taking part in the economic activities. According to the International
Labour Organization (ILO), there is an age limit applied to the children
that children up to age fifteen will not involve in any type of work
forcefully. It is an employment of the children in any type of work which
makes children deprived of childhood, proper education, physical, mental
and social well being. It is completely forbidden in some countries
however has been an international concern in most of the countries as it is
destroying the future of children to a great extent.
It is a serious matter (a big social problem) in most of the
developing countries. Small age group children are being involved in the
child labor hugely by the people of high status. They are avoiding the fact
that children are the big hope and future of the nation. Millions of
children have been deprived of the childhood and proper education in our
country which is a dangerous sign. Such children do not get the chance of
living a healthy life as they are not satisfied physically, mentally and
socially from their childhood.
According to the Indian law, children below the age of 14 years
cannot be employed to any type of work forcefully whether by the parents
or owner in a factories, offices or restaurants. It is a common practice in
India as well as other developing countries in a small scale industry,
domestic aid, restaurant service, stone breaking, shopkeeper’s assistant,
every house-hold industry, book binding, etc.
 32

The condition that most of the people who live below the poverty
line or just above it is really a grim scenario. The poverty that is rampant
in India has been one of the major factors behind this menace of child
labour. The lack of awareness, the social structure where people from the
lower strata of the society are not provided with ample work and
employment opportunity which in turn forces the parents of small
children to force them to work, the population explosion which again
leads to a situation where lack of employment opportunity and
consumption of natural resources at a much faster pace, the lack of
education and poverty are a few factors, which lead to this problem. The
attitude of the government towards this situation is also not worth
appreciating. Now that the right to education is a fundamental right as per
the Indian constitution (Article 21-A), the attitude of the government in
seeing that this article is implemented throughout the country at a
uniform and consistent level so as to see that the children get their due in
the form of free education upto the age of 14 years, still leaves a lot of
room for improvement.
The fact that the government has been put under an obligation
under Article 39 of the Indian Constitution to ensure that the health and
strength of workers, men and women, and the tender age of the children
are not abused and that they are not forced to take up work unsuited to
their age has become a mere statement as this is a mere directive. The
Problem of child labour is still rampant in the world, which leads to loss
of innocent childhood, and the overall performance of the country goes
down, as children are the future of this country. Children are considered
to be the asset of the nation.
Children are universally recognised as the most important asset of
any nation. The endeavour of any society should be to offer them a
supportive environment with opportunities for their education, growth and
development. Ideally, children in their formative years should not be
exposed to physical and mental rigours, which would retard their natural
growth. However, the realities of everyday existence belie the noble
aspirations for a wholesome childhood. Millions of children worldwide
 33

miss out on the carefree joys of childhood, as adult jobs are being
thrusted on them at a tender age 4 9 .
Child Labour: Meaning
The term, child labour, has been defined differently by different
organisations, agencies and countries and many a time the terms 'child
labour" and 'child work' have been used interchangeably. This has often
led to a lot of confusion and a failure to focus and mobilise significant
attention on the real priorities within the field. Child labour,
distinguished from child work, is that which "impairs the health and
development of children". Francis Blanchard, Director General of the
International Labour Organization (ILO), has defined child labour as that
which includes "children prematurely leading adult lives, working long
hours for low wages under conditions damaging to their health and to
their physical and mental development, sometimes separated from their
families, frequently deprived of meaningful education and training
opportunities that could open up for them a better future" According to
the Encyclopedia of Social Sciences, "when the business of wage earning
or of participation in itself or family support conflicts directly or
indirectly with the business of growth and education, the result is child
labour". In a nutshell, therefore, the definition of child labour is any work
within or outside the family that involves a time and energy commitment,
which affects children's ability to participate in leisure, play and
educational activities. It is work, which impairs the health and
development of children.
This is more narrowly defined definition and refers to children
working in contravention of the set  standards.  This means all children
below 12 years of age working in any economic activities, those aged 12
to 14 years engaged in  harmful work, and all children engaged in the
worst forms of child labour. A few of worst forms of child labour can be
listed as being enslaved, forcibly recruited, prostituted, trafficked, forced
into illegal activities and exposed to hazardous work.
A generally valid definition of child labour is presently not
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 34

available either in the national or international context. Any definition

turns upon the precise meaning we attach to two components of the term
“child labour,” i.e., “child” in terms of his chronological age, and
“labour” in terms of its nature, quantum and income generation capacity.
Child labour, however, can broadly be defined as that segment of the
child population which participates in work either paid or unpaid. The
definition of child labour varies from one Act to another depending upon
the seriousness of the problems of children working in a particular
employment.
According to Employment of Children Act, 1938, “No child who
has not completed his fifteen years shall be employed or permitted to
work in any occupation ... No child who has completed his fifteen years
but has not completed his seventeenth year shall be employed or
permitted to work in any occupation unless the period of work of such
child for any day are so fixed as to allow an interval of rest for at least
twelve consecutive hours which shall include at least seven consecutive
hours between 10 P.M. and 7 A.M. as may be prescribed…No child who
has not completed his fourteenth year shall be employed or permitted to
work in any workshop within any of the processes set forth in the
schedule is carried on. 5 0
According to Section 2(2) of the U.P. Dookan Aur Vanijya
Adhishthan Adhiniyam , 1962, “child” means a person who has not
completed his fourteenth year.” 5 1 As per this definition it is clear that
child below the age of 14 years if he is working then it amounts to child
labour.
The present law for dealing with this issue is that of Child Labour
(Prohibition And Regulation) Act, 1986. Although this Act is what we
have it does not define child labour but merely lays down that “No child
shall be employed or permitted to work in any of the occupations set forth
in Part A of the Schedule or in any' workshop wherein any of the

50
S.3, The Employment of Children Act, 1938
51
Section 1 of the U.P. Dookan Aur Vanijya Andhishthan Andhiniyam, 1962 clearly says: “No child shall
be required or allowed to work in any shop or commercial establishment except as an apprentice in such
employment as may be notified by the state government in the gazette.”
 35

processes set forth in Part B of the Schedule is carried on:

Provided that nothing in this section shall apply to any workshop
wherein any process is carried on by the occupier with the aid of his
family or to any school established by, or receiving assistance or
recognition from, Government.” 5 2
Child Labour: The Silent Killer Of Innocence
Child labour is basically a symptom of the underlying problem of
widespread poverty and inequality in society. It is also cause of poverty,
and in this context it becomes self-perpetuating. Poverty is deep-rooted
and natural calamities; disasters, illiteracy, powerlessness and the lack of
viable options further exacerbate the deprivations confronting poor
parents who feel compelled to put a child to work. Poverty is not however
the only factor in child labour and cannot justify all types of employment
and servitude.
Poorly educated parents do not understand the long-term
significance and value of education over the short-term economic gain of
child work and the acquisition of skills. A family’s dependence on a girl’s
labour at home and in the field may deny her access to educational and
other opportunities. Education for poor children may be costly,
inaccessible, of low quality and irrelevant. Children may decide to work
to help increase the family income and there may be peer influence
encouraging children to join working friends on the streets or elsewhere.
There is a market demand for child labour since children are generally
docile, obedient, hired at cheaper rates than adults and dispensed of
easily if labour demands fluctuate. They involve no long-term investment
on the part of industry in terms of insurance or social security and low
paid child labour may be a significant element for industries wishing to
maintain a competitive edge in national and international markets.
Children are unprotected, powerless and silent as far as their rights as
workers are concerned. Children are often preferred in industries that are
labour intensive, function with rudimentary technology and require
labourious/repetitive work for long hours. It is suggested that in certain
52
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 36

industries, like carpet making or electronics assembly, children are

employed because of the dexterity of their small fingers. Child labour
persists because such laws as exist are not strictly enforced and political
commitment is weak and there is no urge to comply.
Child labour forms an intrinsic part of pre-industrial economies. In pre-
industrial societies, there is rarely a concept of childhood in the modern
sense. Children often begin to actively participate in activities such as
child rearing, hunting and farming as soon as they are competent. In many
societies, children as young as 13 are seen as adults and engage in the
same activities as adults
The work of children was important in pre-industrial societies, as
children needed to provide their labour for their survival and that of their
group. Pre-industrial societies were characterised by low productivity and
short life expectancy, preventing children from participating in
productive work would be more harmful to their welfare and that of their
group in the long run. In pre-industrial societies, there was little need for
children to attend school. This is especially the case in non literate
societies. Most pre-industrial skill and knowledge were amenable to being
passed down through direct mentoring or apprenticing by competent
adults.
The situation of the girl child deserves particular attention for
various reasons, but particularly because of the nature of their work and
the conditions under which they work. Much of their work is hidden from
public view. For example, domestic service is a major sector of child
employment. Girls working, as child domestics are largely “invisible”
workers, dispersed and mostly ignored. Isolated from home and
sometimes virtually enslaved, they are frequently exposed to violence and
sexual abuse. Those who do piecework at home are often exploited
through the need to work long hours for minimal rates of pay and many
children work in the informal sector, or on the streets. Not only are many
children deprived of education but also they do not get sufficient rest and
enjoy little recreation.
Specific instances:
 37

Much of the use of children occurs in agriculture: both on family

farms and in large-scale agri-business outfits (including fishing
plantations, orchards and tea plantations). Dalit and Adivasi boys and
girls are disproportionately represented among working children. Over the
years, the percentage of boys working in agriculture has decreased, while
the percentage of girls has increased. Much of the produce grown with the
assistance of child labour finds its way into international markets (tea,
coffee, fish, food-grains). Children work to assist the family unit by
doing chores, but they also work as domestic servants, hawkers and
scavengers for modest wages. While these forms of labour need to be
publicly reassessed, our pamphlet will concentrate on the extent of child
labour in the industrial sector. The obvious international implications of
this sector alert those of us who live in Euro-America to act in concert
with the children who seek a free and protective world.
CARPETS between 300,000 and 400,000 Indian children work in
the manufacture of hand-knotted carpets, the most coveted carpet on the
market today. These children work in a region concentrated around
Bhadohi, Mirzapur and Zaipur in Uttar Pradesh (UP). They suffer from
endemic tuberculosis, other respiratory diseases, skin trouble, eye strain
and worn out limbs (a National Council of Applied Economic Research
study found that "the children surveyed appeared to be famished and had
a stunted growth"). In 2016, India exported more than $170 million worth
of carpets to the US. In Pakistan, about a million children work in the
carpet industry.
DIAMOND INDUSTRY between 6,000 and 100,000 Indian
children work in the diamond industry, where they cut and polish diamond
chips for export to the US and Europe. In 2016, India exported more than
$1 billion worth of gem-stones; in that year, the largest export by value
from India to the US was in gem-stones. The Operations Research Group
singled out the conditions in the diamond plants in Surat, Gujarat (site of
a recent plague and of the riots of 2016): "It found children, mostly boys
between 12 and 13 years old, polishing diamonds for an average of seven
to nine hours a day in unhygienic conditions." The children suffered from
 38

eye strain, headaches, leg and shoulder pain, malaria, discoloration of

hair, rotten teeth and dysentery.
GLASS and GLASSWARE between 8, 000 and 50, 000 Indian
children work in the glass and glassware industry. In 1992, India exported
more than $2 million worth of these products to the US. In a report in
May 1994, the International Labour Rights Education and Research Fund
described the glass factories in India as "`Dante's Inferno' due to the
intense heat of the furnace, lack of ventilation, broken glass everywhere,
dangling electric wires, and workers with no protective equipment." The
children in Firozabad, Agra District, UP, who work in its glassware
factories suffer from tuberculosis, mental retardation, asthma, bronchitis,
liver ailments, chronic anemia, severe burns (which are not treated) as
well as fundamental damage to their genetic matter.
FOOTWEAR about 25, 000 Indian children work in this industry.
In 2016, the US imported more than $107 million worth of footwear from
India. The children who work in footwear factories, the US Department of
Labour says, are "cramped in poorly lit rooms, suffer from continuous
skin contact with industrial adhesives and breathe vapors from glues."
These brief descriptions offer some light on the tragedy of our
contemporary labour regimes. In 1994, Mr. G. K. Morolia of the Indian
Carpet Export Production Council argued that the carpet industry only
hires those children whose parents send them to acquire traditional
weaving skills. Labour, he said, is free to come and to go. For a child of
12, even the formal freedoms of wage slavery must surely be unclear in
the face of the supervisor's wrath. The apologies of the Carpet Council
are a pathetic attempt to justify its culpability. Numerous studies have
established the centrality of violence and coercion in the labour process.
A UNICEF study of Mirzapur (UP) found that most of the child labourers
"did not come to the place of their employment voluntarily rather they
were either kidnapped or dragged away by Mafia gangs from their parents
to work as child labour in most appalling conditions." The Indian
government admits widespread prevalence of bondage relations and
violence in the carpet industry. Other sectors, such as glassware and
 39

gemstones, are not much different. The former Chief Justice of India,
P.N. Bhagwati, found examples of children at work for 14-20 hours/day:
"they are beaten up, branded (with red hot iron rods) and even hung from
trees upside down." Parents, whether in India or the US, do not willingly
send their children into such inhuman work environments.
While it is true that extreme poverty is what forces parents to
accede to the inhumanity of allowing their children to work in such
terrible conditions, such an explanation is both far too universal and
partial to be meaningful. Universal and partial because, any number of
social ills in India or for that matter, in any part of the world can be
partially explained through poverty - child labour in India, crime in
metropolitan US, high infant mortality in the third world, the drug
economy in the first world, child prostitution in South Asia and anti-
immigrant sentiments in North America - the list can surely be endless.
What the universality of such explanations hides is the more particular
structural reasons that constitute the phenomena. By pointing to poverty,
all we manage to do is to avoid the more pertinent structural causes that
outline the phenomena in question and thus also avoid structural policy
work.
Concentrated and visible child labour
Where children are at work in one place, easily visible,
approached from outside, e.g.:
 seamstresses, tailors, metal workers, woodworkers (and their
helpers in open shops);
 bakers, confectioners, cooks (and their helpers) preparing food for
passers by;
 workers in small repair shops e.g. automobile repair;
 service workers in congested areas eg shoe shiners, car washers, car
watchers;
 helpers in supermarkets, vendors, porters, cleaners, cashiers in
markets;
 stone and brick breakers on road and building construction sites.
 40

In rural areas:
 as part of the workforce on large commercial plantations, either
individually or with their families;
 in smaller-scale but still commercial agricultural production, or
harvesting for either domestic or export use;
 in agricultural processing;
 work on factory ships or on fishing fleets or fishing platforms.
Concentrated and invisible child labor
Where children work together or near each other, invisible or
inaccessible to outsiders, e.g.:
 brick kiln workers, quarry workers;
 carpenters, helpers and carriers at construction sites;
 factory workers or helpers producing pottery, glass, metal
etc.;products, plastic goods, jewellery,
 factory workers processing food products;
 traditional carpet and textile weavers whether in groups of
households or small workshops;
 tobacco and cigarette makers;
 workers in match, explosive and firework factories
Dispersed And Invisible Child Labour
These are the children most unknown and hardest to reach in
remote areas, isolated and powerless, and often also the most seriously
exploited:
 domestic servants and children working in family based industries,
such as craftwork;
 apprentices and attendants to skilled craftsmen, making shoes,
jewellery and watches;
 children who assist with subsistence hunting, gathering, fishing and
agriculture;
 children of refugees or recent immigrants to the city who are
engaged in traditional occupations; and
 thieves, pickpockets, smugglers and those involved in the drug
 41

industry or pornography.
The Magnitude Of The Problem
The problem of child labour in India is also of immense
magnitude when one considers the number of children involved.
According to the recent experimental surveys carried out by the lLO's
Bureau of Statistics, The concern is with children who are denied their
childhood and a future, who work at too young an age, who work long
hours for low wages, who work under conditions harmful to their health
and to their physical and mental development, who are often separated
from their families and who are frequently deprived of education. Such
child labour is invariably carried out to the detriment of the child and is
in violation of international law and usually, national legislation.
According to ILO estimates, about 250 million children between
the ages of 5 and 14 are working full or part time in developing countries.
Almost half, some 120 million work full time, every day, all year round.
Some 50-60 million are between 5 and 11 years old. Available data
suggests that more boys than girls are economically active, but girls who
are denied educational opportunities because of their role in household
tasks and sibling childcare may not be accounted for in these statistics.
Working in the early childhood years may indeed have a more significant
impact on girls, reinforcing gender discrimination and resulting in a
denial of life chances. Girls, moreover, are often engaged in work that
exposes them to sexual and other forms of exploitation. Of these, 61% are
found in Asia, 32% in Africa, and 7% in Latin America." Sadly though
India has the largest number of child labour in the world. However, the
estimates of the number of child workers vary in India because of the
difference in the methodology that is used to estimate child labour and
also because of the conceptual differences regarding the definition of
'child', 'child labour', and 'work' itself.
Almost 80% of the child workers are in rural areas even though
according to the 1991 census, 74.3% of the population is in the rural
areas. Thus, a disproportionately higher percentage of workers are located
in the rural areas. Child workers in the rural areas are engaged in
 42

agriculture and allied occupations like cultivation, agricultural labour,

livestock forestry and fisheries. In the urban and semi-urban areas, they
are engaged in a wide varied of production processes and services in
different parts of the country. Various surveys conducted by the labour
bureau reveal that children are employed to do light job, such as helping
in the field, in factories for packing, pasting of labels, etc., and in match
factories, tea factories, tea estates, beedi manufacturing, printing,
publishing, etc. Unorganized sector employs a large number of children as
domestic servants, works in hotels, restaurants, canteens, wayside shops,
newspaper selling, coolies, shoes-shine boys, vender, etc. Though Indian
law does not prohibit the employment of children in cottage industries,
family house-holds, restaurants, or in agriculture yet it is quite evident
that the working conditions of the children in these small organizations is
far inferior to those of large factories.
Regional estimates indicate that 5 3 :
 The Asian and Pacific regions harbour the largest number of child
workers in the five to 14 age group, 127.3 million in total. (19 per
cent of children work in the region.)
 Sub-Saharan Africa has an estimated 48 million child workers.
Almost one child in three (29 per cent) below the age of 15 works.
 Latin America and the Caribbean have approximately 17.4 million
child workers. (16 per cent of children work in the region).
 Fifteen per cent of children work in the Middle East and North
Africa.
 Approximately 2.5 million children are working in industrialized
and transition economies.
The Factors Leading To Child Labour
Child labour in the world has been a result of a lot of factors.
Most of these factors are those, which can be easily eradicated as these
have been concocted by the mankind itself and are not given by the
nature. The nature does not discriminate and forces children to work. The

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differences that we humans bring within us are a very strong factor,

which leads to child labour. The way the society functions in a
discriminating manner is also a factor for child labour. A few of these
factors can be outlined as following: -
 The economic disparity that is present among the rich and poor at
times forces the poor to make the children work, even though they
themselves do not want their children to work.
 According to the report prepared by the India Social Institute on
Child Labour, 80 percent of all child labourers belong to the
scheduled castes and tribes that have been exploited and
marginalized in India for centuries. A major consequence of this is
the deprival of the possibility of education and the consequent
upward modality. Thus child labour has become a mode of
perpetuating an unjust social system and of ensuring the continued
availability of subservient, unskilled, illiterate labourers who do not
have the bargaining power to question the system that marginalizes
them and deprives them of their right to be human.
 The lax attitude on the part of the government in protecting the
rights of the child and preventing him from getting into this grim
situation is also a major factor. To make matters worse, many state
governments have not yet come up with their own legislations on the
basis of the Central legislations.
 The awareness regarding the law upon child labour is very less. In a
survey conducted 86 percent of the employers did not know about the
Child Labour (Prohibition And Regulation) Act, 1986.
 The population explosion has been such that the employment
opportunities have come down drastically. The fact that there are
more than 2 children in a majority of the families in the lower
economic strata or below the poverty line also is a factor for child
labour as majority of the children engaged in child labour don’t get
proper food to eat at home, so this forces them to earn a living for
themselves and their families too so that they are able to have proper
food.
 44

 The fact that children are one of the cheapest sources of labour who
are available in huge numbers due to the poverty-stricken families,
people tend to employ them, as their salaries will be less. A labourer
in an industrial set up is one who sells his/her labour to an employer
in lieu of wages under certain work-related conditions such as legal
safeguards, work safety, bargaining power and right to special
amenities. But children have no identity as workers. They have just
to obey the master and remain at his mercy. There are no minimum
wages or working hours for them. This outlook needs to change and
the innocence of the child needs to be weighed in earlier.
It is generally believed that poverty, unemployment, illiteracy and
the population explosion are the major reasons allowing child labour to
thrive. Even, our political leaders proclaim that as long as poverty exists
child labour cannot be removed. But the truth is that child servitude is the
root cause of all these maladies.
Poverty can never be removed unless child labour is abolished.
An Asia Labour Monitor report says children in India contribute more
than one fifth of the total GNP of the country. But the 60 million child
labourers earn less than three rupees a day. Thus, the total amount is not
even one-fifth of what they produce. If child labour is abolished,
employers will be forced to hire adults at six times the wage they pay the
children. But the adults now lose bargaining power as employers have to
option of hiring cheap child labour.
The general conviction among the poorer sections is that more
children mean more working hands. Children are thus treated as
instruments of income. If all employment avenues for children were
closed, parents would automatically consider more children as liabilities.
This is sure to herald a change in their attitude and force a population
control on them.
Millions of children remain illiterate because then parents are to
send them to work, sometimes under the pressure of employers. The
average dropout rate from primary schools in India is 40 per cent, despite
the desire of the children to learn.
 45

UN Secretary-General Kofi Annan pointed out in his message on

the International Day for the Abolition of Slavery, that though the
government bears the primary responsibility of eradicating contemporary
forms of slavery, consumer awareness and public awareness was
imperative.
It is time for the political parties and people in general to insist
that the government implement stringent measures and raise social
awareness. Consumers should be convinced against buying products made
by children. If not, the children of today will become sick, crippled,
invalid destitute of tomorrow. And inheriting these destitutes will surely
not accelerate the progress of the nation in the next millennium.
The children are delicate and precious flowers of life. It is
undisputed that they are the potential embodiment of our ideals,
aspirations, ambitions, dreams and hopes. One may sincerely visualise in
their innocent personalities the great scientists, philosophers, committed
rulers, devoted policy makers, utilitarian legislators, efficient
administrators, worthy engineers, enlightened industrialists, patriotic and
dedicated soldiers and best citizens always to serve nation and apostle of
International peace and security of 21st century. The child, for the full
and the harmonious development of his or her personality, should grow up
in a very congenial family environment, in an atmosphere of happiness,
love and understanding. In fact, child by virtue of his physical and mental
immaturity needs special safeguards and care including appropriate legal
protection, before and after birth. 5 4
The laws to combat child labour have been there for a long time
now. The need to enact certain rules and regulations to protect the
interest of these innocent children was felt a long age and they were made
too. In our country it was realised as early as 1929 that law is required
for prohibition of employment of young children as a consequence of
which a Royal Commission on Labour came to be established in 1929 to
inquire into various matters relating to labour in this country. The report
came to be finalised in 1931. It brought to light many inequities and
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shocking conditions under which children worked. The Commission had

examined the conditions of child labour indifferent industries and had
found that children had been obliged to work any number of hours per day
as required by their masters. It was also found that they were subject to
corporal punishment. The Commission had felt great concern at the
placing of children by parents to employers in return for small sums of
money; and as this system was found to be indefensible it recommended
that any bond placing a child should be regarded as void.
The recommendations of the Commission came to be discussed in
the Legislative Assembly and the Children (Pledging of Labour) Act,
1933 came to be passed, which may be said to be the first statutory
enactment dealing with child labour. As on today, the following
legislative enactments are in force prohibiting employment of child labour
in different occupations:
(i) Section 67 of Factories Act, 1948: Prohibition of employment of young
children: No child who has not completed his fourteenth year shall
be required or allowed to work in any factory.
(ii) Section 24 of Plantation Labour Act, 1951: No child who has not
completed his twelfth year shall be required or allowed to work in
any plantation."
(iii) Section 109 of Merchant Shipping Act, 1958: No person under fifteen
years of age shall be engaged or carried to sea to work in any
capacity in any ship, except -
1. in a school ship, or training ship, in accordance with the
prescribed conditions; or
2. in a ship in which all persons employed are members of one
family; or
3. in a home-trade ship of less than two hundred tons gross; or
4. where such person is to be employed on nominal wages and will
be in the charge of his father or other adult near male relative.
(iv) Section 45 of Mines Act. 1952:
1. No child shall be employed in any mine, nor shall any child be
allowed to be present in any part of a mine which is below ground or
 47

in any open cast working in which any mining operation is being

carried on.
2. After such date as the Central Government may, by notification in
the Official Gazette, appoint in this behalf, no child shall be
allowed to be present in any part of a mine above ground where any
operation connected with or incidental to any mining operation is
being carried on.
The Role Of The Constitution And The Child Labour (Prohibition And
Regulation) Act In Safegaurading The Interest Of The Child
The current legislation that we have to tackle the issue of child
labour directly is the Child Labour (Prohibition and Regulation) Act of
1986. This Act was to be enacted keeping in mind that child labour has to
be abolished. Unfortunately, this purpose has been mainly sidelined and a
more refined way to employ child labour has been given in this
legislation. This particular legislation is not in consonance with the
constitution of India, which is the supreme law of the land. To see this
we first need to see what the constitution of India has in its articles that
talk about child, child labour and the rights of the child.

Constitution of India: The Articles Dealing with Protection of the

Child:
In this part we shall be taking a look at those Articles of the
constitution of India which deal with the protection of the child, some
directly and some indirectly.
Article 21: - It guarantees the Right to life and liberty . The Indian
Supreme Court has interpreted the right of liberty to include, among other
things, the right to be free from inhuman and degrading treatment, the
right to integrity and dignity of the person, the right to the benefits of
protective labour legislation, and the right to speedy justice. The practice
of child labour violates all of these constitutionally mandated rights.
Article 23: - of the constitution prohibits the practice of debt
bondage and other forms of slavery. Traffic in human beings and Begar
and other similar forms of forced labour are prohibited and any
 48

contravention of this provision shall be an offence punishable in

accordance with the law. Begar is an ancient caste-based obligation, a
“form of forced labour under which a person is compelled to work without
receiving any remuneration.
Art.24: - Prohibition of employment of children in factories, etc.-
No child below the age of fourteen years shall be employed to work in
any factory or mine or engaged in any other hazardous employment.
Art.39-- Certain principles of policy to be followed by the State.
The State shall, in particular, direct its policy towards securing—
(a) that the citizens, men and women equally, have the right to an
adequate means of livelihood;
(b) that the ownership and control of the material resources of the
community are so distributed as best to subserve the common good;
(c) that the operation of the economic system does not result in the
concentration of wealth and means of production to the common
detriment;
(d) that there is equal pay for equal work for both men and women;
(e) that the health and strength of workers, men and women, and the
tender age of children is not abused and that citizens are not forced
by economic necessity to enter avocations unsuited to their age or
strength;
(f) that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity and that
childhood and youth are protected against exploitation and against
moral and material abandonment.
Article 39 of the constitution lays down a principle for the state
to follow and work it self towards the goals that have been set out for the
government to perform. From our point of view, we will confine ourselves
to Art.39 (e) and Art.39 (f) only for the purposes of discussion on this
topic.
As per the directive laid down in this article it is important for
the government to fame its policies and also see into the matter that the
health of the workers is compromised upon and that the tender age of
 49

children is not abused. They should not be forced to take up jobs or

assignments, which are unsuited to their health. It is upon the government
to insure that this does not happen due to economic necessity. The state
should try to take measures so as to protect the loss of innocent childhood
and provide their upliftment.
Art.39 (f) - As required by the constitution it is for the state to
insure that children are given opportunities and facilities to develop in a
healthy manner and in conditions of freedom and dignity. The childhood
and youth are to be protected against exploitation and against moral and
material abandonment. The state has to provide them with opportunities
so that the object set out in the constitution can be achieved.
Detention of Children in Jails : - A child below the age of 16
years is a national asset. The State is under duty to look after the child
with a view to ensuring full development of its personality. The
incarceration in jail would have the effect of dwarfing the development of
the child. Thus, the Children Act 1960 should he brought into force. 5 5
In M.C. Mehta v State of TN 5 6 , the Supreme Court has held that
strictly speaking a strong case exists to invoke the aid of Art. 41 of the
Constitution regarding the right to work and to give meaning to what has
been provided in Art. 47 relating to raising of standard of living of the
population and Art. 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, get a job anywhere, in lieu of the child. This would also
see the fulfilment of the wish contained in Art. 41 after about half a
century of its being in the paramount parchment, like primary education
desired by Art. 45 having been given the status of fundamental right by
the decision in Unni Krishnan’s 5 7 case. The Supreme Court laid down ten
Principles for concerned States to give shape to the directions given in

55
Sheela Barse v Union of Iandia AIR 1986 SC 1773 (paras 4, 10).
56
AIR 1997 SC 699 (paras 29, 30, 31).
57
AIR 2016 SC 2178; (2016) 1 SCC 645
 50

MC. Mehta v State of TN 5 8 .

Myron Weiner in his book ‘ The Child and the State in India ’ (at
page 4 of 1991 Edition) has pointed out that India is an exception to the
global trend toward the removal of children from the labour force and
establishment of compulsory, universal primary school education, as
many countries of Africa like Zambia, Ghana, Ivory Coast, Libya,
Zimbabwe, with income levels lower than India, have done better in these
matters.
In Bandhua Mukti Morcha v Union of India 5 9 , the Supreme Court
reiterated the directions given in M.C. Mehta v State of Tamil Nadu 6 0 for
abolition of child labour. The Government of India should evolve steps
for providing compulsory education to such children, their health check-
up, nutrient food and entrustment of responsibilities. There is need for
their speedy implementation.
Art.41: - Right to work, to education and to public assistance in
certain cases. - The State shall, within the limits of its economic capacity
and development, make effective provision for securing the right to work,
to education and to public assistance in cases of unemployment, old age,
sickness and disablement, and in other cases of undeserved want.
Art.45: - Provision for free and compulsory education for
children. -The State shall endeavour to provide, within a period of ten
years from the commencement of this Constitution, for free and
compulsory education for all children until they complete the age of
fourteen years. .
Art.47: - Duty of the State to raise the level of nutrition and the
standard of living and to improve public health. - The State shall regard
the raising of the level of nutrition and the standard of living of its people
and the improvement of public health as among its primary duties and, in
particular, the State shall endeavour to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks and of
drugs, which are injurious to health.
58
Supra, note 13.
59
(2015) 10 SCC 549
60
(2016) 6 SCC 756
 51

The constitution has a lot of areas covered within its ambit in the
above said articles. The framers of the constitution knew that it would not
be possible to achieve the abolition of child labour only by Art. 24 of the
constitution, so they also incorporated other provisions in the constitution
to address the issue of protection of rights of the child. An example for
the same is found in Article 45 was therefore inserted in our paramount
parchment casting a duty on the State to endeavour to provide free and
compulsory education to chi1dren. (It 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 AP 6 1 has acquired the status of a
fundamental right). Our Constitution contains some other provisions also,
desiring that a child must be given an opportunity and facility to develop
in a healthy manner.
The Child Labour (Prohibition And Regulation) Act, 1986: The
Highlights
Now we shall see the basic features of the Child Labour
(Prohibition and Regulation) Act, 1986 and then the difference between
the constitution and the Act.
The Act bans the employment of children, below 14 years of age
in specified occupations and processes which are considered unsafe and
harmful to child workers and regulates the conditions of work of children
in employments where they are not prohibited from working. It also lays
down penalties for employment of children in violation of the provisions
of this Act, and other Acts which forbid the employment of children; The
Act extends to the whole of India.
A few of these occupations under Part A of the Schedule can be
listed as:-
 Transport of passengers, goods or mails by railway,
 Cinder picking, clearing of an ash pit or building operation in the
railway premises,
 Work in a catering establishment at a railway station, involving the

61
(2013) 1 SCC 645
 52

movement of a vendor or any other employee of the establishment,

from one platform to another or into or out of a moving train,
 Work relating to the construction of a railway station or with any
other work which is done in close proximity to or between the railway
lines,
 A port authority within the limits of any port,
 Work relating to selling of crackers and fireworks in shops with
temporary licenses, and
 Abattoirs/Slaughter Houses.
A few of the processes specified in Part B of the schedule are: -
 Bidi making
 Carpet weaving
 Cement manufacture including bagging thereof
 Cloth printing, dyeing and weaving
 Manufacture of matches, explosives and fire works.
 Mica-cutting and splitting
 Shellac manufacture
 Soap manufacture
 Tanning
 Wool-cleaning
 Building and construction industry
 Manufacture of slate pencils (including packing)
 Manufacture of products from agate
 Manufacturing processes using toxic metals and substances such as
lead, mercury, manganese, chromium, cadmium, benzene pesticides
and asbestos.
 Hazardous processes, Printing and dangerous operations as notified in
the rules of the Factories Act, 1948
 Cashew and cashew nut descaling and processing.
 Soldering processes in electronic industries.
Regulation Of Work Conditions
 53

Employment of children in an establishment or a class of

establishments shall be regulated as under:
Maintenance Of Register
There shall be maintained by every occupier in respect of children
employed or permitted to work in any establishment other than those
prohibited, a register to be available for inspection by an Inspector at all
times during working hours or when work is being carried on in any such
establishment, showing-
(a) The name and date of birth of every child so employed or permitted to
work;
(b) Hours and periods of work of any such child and the intervals of rest
to which he is entitled;
(c) The nature of work of any such child; and
(d) Such other particulars as may be prescribed.
Hours And Period Of Work
No child shall be permitted or required to work between 7 p.m.
and 8 a.m. and to work overtime. The period of work on each day shall be
so fixed that no period shall exceed three hours and that no child shall
work for more than three hours before he has had a rest interval for
atleast one hour. The total working hours including the rest interval and
the time spent in waiting for work shall not be spread over more than six
hours per day.
No child shall be required or permitted to work in any
establishment on any day on which he has already been working in
another establishment.
Weekly Holiday
The Act also provides that every child employed in an
establishment shall be allowed in each week, a holiday for one whole day.
The weekly holiday specified by the employer shall not be altered more
than once in three months and a notice to that effect shall be displayed at
a conspicuous place in the establishment.
Health And Safety Of Child Workers
The appropriate Govt. has been empowered under the Act to make
 54

rules for the health and safety of working children in any establishment or
class of establishment. These rules may provide for such matters as
cleanliness in work place, drinking water, temperature and artificial
humidication, fencing of machinery, excessive weights, protection of
eyes, device for cutting off power, etc.
The Conflict Between The Child Labour (Prohibition And Regulation)
Act Of 1986 And The Constitution
Now to see the disparity in the law that exists glaringly is that as
per s.3 of the Child Labour (Prohibition and Regulation) Act of 1986, no
child shall be employed or permitted to work in any of the 13 occupations
set forth in Part A of the Schedule or in any workshop wherein any of the
57 processes set forth in Part B of the Schedule is carried on. There is
also a proviso to this section as per which nothing in this section shall
apply to any workshop wherein any process is carried on by the occupier,
with the aid of his family or to any school established by, or receiving
assistance or recognition from Government. This to my understanding is
in absolute disparity with what the constitution has laid down. As per the
constitution, Art. 24 no child below the age of fourteen years shall be
employed to work in any factory or mine or engaged in any other
hazardous employment, whereas as per the Act of 1986, employment of
children is not barred in places not finding a mention in the occupations
and processes. Considering this that the constitution is the supreme law of
the land in India and every law needs to be in conformity with the
constitution, there is an urgent need to remove this disparity in the law
which will be a lot easier to amend than the constitution and will also
show that the government is seriously concerned in eradicating child
labour and protecting the rights of the child.
However, if we want to protect the rights and interest of the child
properly and effectively then the constitution also needs to be changed
and amended. The constitution needs to incorporate that the children
below the age of 18 years of age and not 14 years of age cannot be
employed in hazardous employment. By incorporating this, the
government will express its true concerns regarding eradicating this
 55

problem which id assuming daunting proportions day by day.

Bonded Labour In India
With estimates ranging from 60 to 115 million, India has the
largest number of working children in the world. Whether they are
sweating in the heat of stone quarries, working in the fields sixteen hours
a day, picking rags in city streets, or hidden away as domestic servants,
these children endure miserable and difficult lives. They earn little and
are abused much. They struggle to make enough to eat and perhaps to help
feed their families as well. They do not go to school; more than half of
them will never learn the barest skills of literacy. Many of them have
been working since the age of four or five, and by the time they reach
adulthood they may be irrevocably sick or deformed-they will certainly be
exhausted, old men and women by the age of forty, likely to be dead by
fifty. Most or all of these children are working under some form of
compulsion, whether from their parents, from the expectations attached to
their caste, or from simple economic necessity. At least fifteen million of
them, however, are working as virtual slaves. These are the bonded child
labourers of India.
"Bonded child labour" refers to the phenomenon of children
working in conditions of servitude in order to pay off a debt. The debt
that binds them to their employer is incurred not by the children
themselves, but by their relatives or guardians-usually by a parent. In
India, these debts tend to be relatively modest, ranging on average from
500 rupees to 7,500 rupees, depending on the industry and the age and
skill of the child. The creditors-cum-employers offer these "loans" to
destitute parents in an effort to secure the labour of a child, which is
always cheap, but even cheaper under a situation of bondage. The parents,
for their part, accept the loans. Bondage is a traditional worker-employer
relationship in India, and the parents need the money-perhaps to pay for
the costs of an illness, perhaps to provide a dowry to a marrying child, or
perhaps-as is often the case-to help put food on the table.
The children who are sold to these bond masters work long hours
over many years in an attempt to pay off these debts. Due to the
 56

astronomically high rates of interest charged and the abysmally low

wages paid, they are usually unsuccessful. As they reach maturity, some
of them may be released by the employer in favor of a newly indebted and
younger child. Many others will pass the debt on, intact or even higher, to
a younger sibling, back to a parent, or on to their own children.
The past few years have seen increasing public awareness-in India
itself, but particularly in the international arena-of the high incidence of
child servitude in the carpet industry of South Asia. As a consequence,
the international public has come to associate "child servitude" with the
image of small children chained to carpet looms, slaving away over the
thousands of tiny wool knots that will eventually become expensive
carpets in the homes of the wealthy.
Here is a real life example quoted by the Human Rights Watch, an
agency working for the human rights around the world. Under their
project Human Rights Watch Children's Rights Project 6 2 , they conducted
an extensive research in this area and made a submission for the world to
see that what India’s real growth is. 6 3
“ My sister is nine years old. Every morning at seven she goes to
the bonded labour man, and every night at nine she comes home. He
treats her badly; he hits her if he thinks she is working slowly or if she
talks to the other children, he yells at her, he comes looking for her if she
is sick and cannot go to work. I feel this is very difficult for her.”
“I don't care about school or playing. I don't care about any of
that. All I want is to bring my sister home from the bonded labour man.
For 600 rupees I can bring her home that is our only chance to get her
back.”
“We don't have 600 rupees . . . we will never have 600 rupees.”
Lakshi is a nine year-old beedi (cigarette) roller, in Tamil Nadu.
Her seven-year-old brother who wants to bring his sister back from the
clutches of bonded labour gave these statements. The sum involved is Rs.
600/-, which this little boy is unable to afford. This is the irony of the
62
http://www.hrw.org/reports/1996/Iandia3.htm
63
Adopted by the General Conference of the International Labour Organization at its Eighty-Seventh
Session, Geneva, June 17, 1999.
 57

Indian growth that where one in the towns are able to earn thousands and
thousands of rupees, some in the very same country cannot afford to
arrange a meager sum to get some one out of the clutches of bonded child
labour.
This is not merely bonded labour. This is slavery in its refined
form where a person/ child is allowed to go back home and stay there for
the night, but he has to again come back to work the next morning. This is
bonded labour, which is no better than slavery, which though has been
declared illegal long ago.
Slavery is not dead. Societies are loath to admit to still
harbouring it but, as can be surmised from cases reported to the ILO
Committee of Experts on the Application of’ Conventions and
Recommendations, numerous children are trapped in slavery in many
parts of the world. Of all working children, surely these are the most
imperiled.
Some bondage practices are virtually indistinguishable from
chattel slavery of 200 years ago, except that the markets are not so open.
Children are sold outright for a sum of money. Sometimes landlords buy
child workers from their tenants or, in a variant of the system, labour
“contractors” pay an advance sum to rural families in order to take their
children away to work in carpet weaving, in glass manufacture, in
prostitution. Child slavery of this type has long been reported from South
and South-East Asia and West Africa, and despite vigorous official denial
of its existence it is both common and well documented. One of the most
common forms of bondage is family bondage, where children work to help
pay off a loan or other obligation incurred by the family. The lenders,
who are often landlords, usually manipulate the situation in such a way
that it is difficult or impossible for the family to pay off its debt, thereby
assuring essentially free labour indefinitely. A family may thus remain
bonded through generations, with children replacing their aged or infirm
parents in an intergenerational bondage arrangement. Bondage
arrangements, it must be emphasized, are illegal in nearly every country,
including in the countries where they are most prevalent. They fall foul
 58

not only of child labour laws, but also of international conventions of

which virtually all countries are signatories.
Apart from agriculture, which accounts for 64 percent of all
labour in India, bonded child labourers form a significant part of the work
force in a multitude of domestic and export industries. These include, but
are not limited to, the production of silk and silk saris, beedi (hand-rolled
cigarettes), silver jewelry, synthetic gemstones, leather products
(including footwear and sporting goods), hand-woven wool carpets, and
precious gemstones and diamonds. Services where bonded child labour is
prevalent include prostitution, small restaurants, truck stops and teashop
services, and domestic servitude.
In India, other key elements behind bonded child labour include:
an ancient tradition of slavery and debt bondage; the lack of alternative
small-scale loans for the rural and urban poor and the lack of a concerted
social welfare scheme to safeguard against hunger and illness; a
noncompulsory and unequal educational system; the lack of employment
opportunities and living wages for adults; corruption and indifference
among government officials; and societal apathy. A final element is caste-
based discrimination, which is closely intertwined particularly with
agricultural debt bondage. 6 4
It is shocking to see these conditions persist inspite of a bundle of
laws being present in the country to tackle them. A relatively recent law
the Child Labour (Prohibition and Regulation) Act of 1986 , designates a
child as “a person who has not completed their fourteenth year of age.’ It
purports to regulate the hours and conditions of some child workers and
to prohibit the use of child labour in certain enumerated hazardous
industries. (There is no blanket prohibition on the use of child labour, nor
any universal minimum age set for child workers.) Most important of all,
for children in servitude, is the Bonded Labour System (Abolition) Act,
1976, which strictly outlaws all forms of debt bondage and forced labour.
These extensive legal safeguards mean little, however, without the

64
India Report on the World Summit for Children, Department of Women and Child Development,
Ministry of Human Resource Development, Government of India, Delhi, 2012
 59

political will to implement them. In India, this will is sorely lacking. All
of the labour laws are routinely flouted, and with virtually no risk of
punishment to the offender. Whether due to corruption or indifference or
both, these laws are simply not enforced. In those rare cases where
offenders are prosecuted, sentences are limited to negligible fines.
Prohibition of ‘Traffic in Human Beings’ and Forced Labour--
Article 23 of the Constitution of India prohibits traffic in human
being and begar and other similar forms of forced labour. The second part
of this Article declares that any contravention of this provision shall be
an offence punishable in accordance with law. Clause (2) however permits
the State to impose compulsory services for public purposes provided that
in making so it shall not make any discrimination on grounds only of
religion, race, caste or class or any of them.
‘Traffic in human beings’ means selling and buying men and
women like goods and includes immoral traffic in women and children for
immoral” or other purposes. 6 5 Though slavery is not expressly mentioned
in Article 23, it is included in the expression ‘traffic in human being’ 6 6 .
Under Article 35 of the Constitution Parliament is authorised to make
laws for punishing acts prohibited by this Article. In pursuance of this
Article Parliament has passed the Suppression of Immoral Traffic in
Women and Girls Act, l956, for punishing acts which result in traffic in
human beings.
Article 23 protects the individual not only against the State but
also private citizens. It imposes a positive obligation on the State to take
steps to abolish evils of “traffic in human beings” and begar and other
similar forms of forced labour wherever they are found.
Article 23 prohibits the system of ‘bonded labour’ because it is a
form of force labour within the meaning of this Article. It is to be noted
that the protection of this Article is available to both citizens as well as
non-citizens.
Begar and “other forms of forced labour” are prohibited by this

65
Raj Bahandur v. Legal Remembrancer, AIR 1953 Cal. 522
66
Dubar Goala v. Union of India, AIR 1952 Cal. 496
 60

Article. “Begar” means involuntary work without payment. What is

prohibited by this clause is the making of a person to render service
where he was lawfully entitled not to work or to receive remuneration of
the services rendered by him. This clause, therefore, does not prohibit
forced labour as a punishment for a criminal offence. The protection is
not confined to begar only but also to “other forms of forced labour”. It
means to compel a person to work against his will.
In Peoples Union for Democratic Rights v. Union of India 6 7 , the
Supreme Court considered the scope and ambit of Article 23 in detail. The
Court held that the scope of Article 23 is wide and unlimited and strikes
at traffic in human beings and begar other forms of forced labour
wherever they are found. It is not merely “begar” which is prohibited by
Article 23 but also all other forms of forced labour. Begar is a form of
forced labour under which a person is compelled to work without
receiving any remuneration. This Article strikes at forced labour in
whatever form it may manifest itself, because it is violative of human
dignity and contrary to basic human values. The practice of forced labour
is condemned in almost every international instrument dealing with
human rights. Every form of forced labour “begar” or other forms is
prohibited by Article 23 and it makes no difference whether the person
who is forced to give his labour or service to another is paid remuneration
or not. Even if remuneration is paid, labour or services supplied by a
person would be hit by this Article, if it is forced labour, e.g., labour
supplied not willingly but as a result of force or compulsion.
According to a vast and deeply entrenched set of myths, bonded
labour and child labour in India are inevitable. They are caused by
poverty. It is not possible to change them by force; they must evolve
slowly toward eradication. In fact, poverty is only one of many factors at
play in creating and sustaining the conditions that facilitate endemic
bondage. Regardless of the debt structures the child labourer is under,

67 AIR 2009 SC 1943.

 61

the end result is the same: it is very difficult to escape bondage. The
underlying reason for this difficulty is the grossly unequal power
relationships between the child workers and their parents on the one hand
and the creditors-cum-employers on the others. The former are frequently
low caste, illiterate, and extremely poor. The latter are usually higher
caste, literate, comparatively wealthy, and powerful members of the
community. Often, these creditors-employers are the only moneylenders
in town, and as such are extremely influential. They are also frequently
connected, by caste and by the social and political hierarchy of the
community, with local officials, including police officers, factory
inspectors, and other local authorities that might normally be expected to
safeguard the rights of children. 68

In truth, the Indian government has failed to protect its most

vulnerable: children. When others have stepped in to try to flu the
vacuum and advocate on behalf of those children, India’s leaders and
much of its media have attributed nearly all “outside” attempts at action
to an ulterior commercial motive. The government now needs to get out of
its slumber and take cognizance of the fact that inspite of so many laws
made by them and the international organistaions why do these problems
still persist. They will realize that the problem is in the attitude and in the
commitment and not in the absence of governing principles of legislation.

68
Arpita Ghosh and Ahana Datta Mukherjee, ―Protection of Child Rights: Concern, Issues and Reality‖,
in Subrata Sankar Bagchi (ed.), Expanding Horizons of Human Rights, Atlantic Publishers, New Delhi,
2016, pp.153-154.
 62

CHAPTER- IV
LEGISLATIVE PERSPECTIVE
Besides the Constitutional provisions for the protection of the
welfare of children, the parliament has enacted a number of legislations
in this behalf dealing with various aspects such as the prohibition and
regulation of child labour, prohibition of child marriage, special
provisions for the treatment and trial etc. of juvenile offenders, as well as
'Children in need of care and protection' and recently for the
establishment of commissions for the protection of the rights of children.
In addition, it may be mentioned that in 2001, a Draft Bill, the Street
Children (Protection of Rights) Bill, 2001 was introduced in the
Parliament.
We will discuss this chapter under two headings namely- protection
of children under Civil law as well as under Criminal law.
Protection of Children under Civil Law:-
Code of Civil Procedure, 1908:
Code of Civil Procedure 1908 provides for suits by or against
minors and persons of unsound mind 6 9 . It has got 16 rules. Rule 1 says
that “suits by a minor shall be instituted in his name by a person who in
such suit shall be called the next friend of the minor”. Rule 2 says that
where a suit is instituted without next friend, the plaint can be taken off
the file by an application of the defendant to that effect. Rule 2A added
with the 1976 Amendment of the Code says that if it is desired by the
court, the next friend will be required to furnish security. It is also held
that the person so appointed will be the guardian for suit for a minor shall
continue as such throughout the proceedings arising out of the suit unless
and until his appointment is terminated. Rule 4 speaks of the eligibility of
the next friend or guardian which says that “any person who is of sound
mind and has attained majority may act as next friend of a minor or as his
guardian for the suit; provided that the interest of such person is not
adverse to that of the minor and that he is not, in the case of the next

69
Order 32, Code of Civil Procedure, 1908.
 63

friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.
While Rule 5 says that an application to the court on behalf of the minor
is to be made by his next friend or by his guardian to the suit. Rule 6
debars the next friend or guardian for the suit to receive any money or
movable property without the leave of the court. Rule 7 debars the next
friend or guardian to the suit to enter into any agreement or compromise
on behalf of the minor without the leave of the court and if any such
agreement or compromise is entered into without the leave of the court
shall be voidable against all the parties other than the minor. Retirement,
removal or stay of proceedings on removal etc. of next friend and
retirement, removal or death of guardian to the suit are being dealt with
Rules 8 to 11.Rule 12 speaks of the course to be followed by the minor
plaintiff or applicant on attaining majority. If he elects to proceed with
the suit or application, he shall apply for an order discharging the next
friend and for leave to proceed in his own name and if he wishes to
abandon the suit or application, if he is the sole plaintiff or applicant can
do so by applying for an order to dismiss the suit or application on
repayment of the cost incurred by the defendant or opposite party or
which may have been paid his next friend. As per Rule 13 if a minor co-
plaintiff on attaining majority desires to repudiate the suit, the court shall
dismiss him from the suit if it finds that he is not a necessary party on
such terms as to costs or otherwise as it thinks fit. Lastly Rule 14
provides that on an application by the minor when he is the sole plaintiff,
on attaining majority to dismiss the suit on the ground that it was
unreasonable and improper, he can be allowed by the court if it is
satisfied of the fact of unreasonableness or impropriety.
Indian Contract Act, 1872
The Contractual capacity of a minor can be adjudged from the
provisions of the Indian Contract Act, 1872. Section 11of the Act deals
with the provisions of contractual capacity.
"Every person is competent to contract who is of the age of
majority to which he is subject and who is of sound mind and who is not
disqualified from contracting by any law to which he is subject." Thus the
 64

following persons are declared incompetent to contract:

(i) Minors.
(ii) Person of unsound mind.
(iii) Persons disqualified by law to which he is subject.
The following are the effects of an agreement entered in to by a
minor-There can be no estoppel against the minor, there is no liability
arising out of contract or in tort arising out of contract and lastly the
doctrine of restitution. Section 68 of the Act lays down provisions with
respect to the claim for necessaries supplied to a person incapable of
contracting or supplied on his account.
"If a person, incapable of entering in to a contract or anyone whom
he is legally bound to support, is supplied by another person with
necessaries suited to his condition in life, the person who has furnished
such supplies is entitled to be reimbursed from the property of such
incapable person."
The Guardian and Wards Act, 1890
It has been well settled that any matter relating to a minor should
only be considered from the view point of the welfare of the child. In this
case the courts have got special responsibility and it is also their duty to
see that the interest of the child is not at stake. Keeping this in mind, as
per the provisions of the Guardian and Wards Act, 1890 the court is
empowered to appoint a guardian of the minor’s person or property 7 0 and
remove a guardian who has not been appointed by will or other
instrument or appointed or declared by the court.
(1) Persons entitled to apply for order:
Persons who are entitled to apply for order 7 1 are:
(a) The person desirous of being, or claiming to be, the guardian of
the minor; or
(b) Any relative or friend of the minor; or
(c) The Collector of the district or other local area within which the
minor ordinarily resides or in which he has property; or

70
Section 7(1), The Guardian and Wards Act,1890.
71
Ibid; Section8.
 65

(d) The Collector having authority with respect to the class to which
the minor belongs.
If the application is with respect to the guardianship of the person
of the minor, the application is to be made to the District Court having
jurisdiction in the place where the minor ordinarily resides 7 2 and if the
application relates to the guardian of the property of the minor, it can be
made either to the District Court having jurisdiction of the place of
residence of the minor or to the District Court having jurisdiction in a
place where the minor has the property 7 3 .
The Court has the power to make interim order directing the
persons if any, having the custody of the minor to produce or to cause
him to be produced at such time and place and before such person as it
appoints and also can make orders for the temporary custody and
protection of the person or property of the minor as it thinks proper 7 4 .
(2) Matters relating to the appointment of a guardian:
While appointing a guardian the court is required to take the
following matters in to consideration:
(1) In appointing or declaring the guardian of a minor, the Court shall,
subject to the provisions of this section, be guided by what,
consistently with the law to which the minor is subject, appears in
the circumstances to be for the welfare of the minor 7 5 .
(2) In considering what will be for the welfare of the minor, the court
shall have regard to the age, sex and religion of the minor, the
character and capacity of the proposed guardian and his nearness of
kin to the minor, the wishes, if any of the deceased parent and any
existing or previous relations of the proposed guardian with the
minor or his property.
(3) If the minor is old enough to form an intelligent preference, the
court may consider that preference 7 6 .

72
Ibid; Section 9(1).
73
Ibid: Section 9(2).
74
Ibid; Section 12(1).
75
Ibid; Section 17(2).
76
Ibid; Section 17(3).
 66

(4) The court shall not appoint or declare any person to be a guardian
against his will.
(3) When the Court does not appoint a guardian:
The Court does not appoint or declare a guardian of the person:
(a) of a minor who is a married female and whose husband is not, in
the opinion of the court, unfit to be guardian of her person; or
(b) of a minor whose father is living and is not in the opinion of the
Court, unfit to be guardian of the person of the minor; or
(c). of a minor whose property is under the superintendence of a Court
of Wards competent to appoint a guardian of the person of the
minor 7 7 .
Rights, duties and liabilities of a guardian in respect of the person
and property of the minor have also been prescribed in the Act and
termination, removal and discharge for the guardian is also allowed in
certain circumstances.
Hindu Adoption and Maintenance Act, 1956:
The law relating to the adoption and maintenance has been codified
after the passage of this Act. As regards the successions, the sons and
daughters have been treated equally and equality of status relating to
adoption has also been recognized after the passage of the Act.
As regards the adoption, the Act spells out the requisites of a
valid adoption. As per Act, no adoption shall be valid unless 7 8 -
(a) the person adopting has the capacity, and also the right, to take in
adoption;
(b) the person giving in adoption has the capacity to do so;
(c) the person adopted is capable of being taken in adoption; and
(d) the adoption is made in compliance with the other conditions
mentioned in the chapter.
(1) Capacity of the persons to take in adoption:
(a) Adoption by a Hindu male-
Any male Hindu who is of sound mind and is not a minor has

77
Ibid; Section 19.
78
Section 7, Hindu Adoption and Maintenance Act, 1956.
 67

the capacity to take a son or a daughter in adoption whether he is a

bachelor, widower, divorcee or married person. But for a married
Hindu male it is obligatory to obtain the consent of his wife. In
case he has more than one wife, consent of all the wives is
necessary. An adoption made without the consent of wife is void.
The consent of the wife, or of any of the wives, in case a person has
more than one may be dispensed with in any of the following
cases 7 9
(i) if the wife has ceased to be a Hindu;
(ii) if she has finally and completely renounced the world;
(iii) if she has been declared by the court of competent
jurisdiction to be of unsound mind.
If a Hindu male adopts a female child, he must be senior to her by
atleast 21 years, otherwise the adoption will be void.
(b) Adoption by a Hindu female-
The Act makes a fundamental departure from the old law by
empowering a Hindu female, though not a married woman, to adopt
to herself in her own right. Under the old Hindu law, a female had
no capacity to make an adoption to herself, though a widow, under
certain circumstances, could adopt a son to her deceased husband.
Under the Hindu Adoption and Maintenance Act, 1956 a Hindu
unmarried woman, widow or divorcee, has the capacity to adopt. It
has been held in Vijayalakshamma v. B.T. Shankar 8 0 , that where a
widow adopts a child, she need not take consent of a co widow
because she adopts the child in her own capacity. An unchaste
woman (unmarried or widow) also has the capacity to adopt. But a
married woman has no capacity to adopt. She cannot adopt even
with the consent of her husband. If there is to be an adoption, it
must be made by her husband with her consent. The position is thus
that a married woman totally lacks the capacity to adopt except in
any one of the following three cases:

79
Ibid.
80
AIR 2001 SC 1424.
 68

(i) if her husband has ceased to be a Hindu;

(ii) if he has finally and completely renounced the world;
(iii) if he has been declared by the court of competent
jurisdiction to be of unsound mind.
If a female adopts a male child, she must be senior to the child by
atleast 21 years.
(2) Capacity of the persons to give in adoption:
Under the old Hindu law, only father or mother could give the child
in adoption. According to Yajnavalkya , ‘a dattaka son is one whom his
mother or father gives’. Before 1956, the father’s power to give his child
in adoption was absolute and he could give the child in adoption even if
his wife (child’s mother) dissented from it. After the father, the mother
could give the child in adoption. No one else could give the child in
adoption, not even the guardian. Under the Hindu Adoption and
Maintenance Act, 1956, the father, mother and the guardian have the
power to give the child in adoption.
It provides that only the parents, i.e. either the father or the
mother and the guardian have the capacity to give the child in adoption. If
the father is alive, he can only give in adoption with the consent of the
mother, unless the mother has completely and finally renounced the world
or has ceased to be a Hindu or has been declared to be of unsound mind
by a competent court. If the father is dead or has completely and finally
renounced the world or has ceased to be a Hindu or has been declared of
unsound mind, the mother may give the child in adoption 8 1 .
Where, both the father and mother are dead or have completely
and finally renounced the world or have abandoned the child or have been
declared of unsound mind by a competent court, or where the parentage of
the child is unknown, the guardian with the previous permission of the
court can give the child in adoption to any person including the guardian
himself. However, before granting permission due consideration would be
given to the wishes of the child and the court is to be satisfied that no
pecuniary consideration are involved or arranged and take a decision
81
Section 9,Hindu Adoption and Maintenance Act,1956.
 69

keeping in mind the welfare of the child.

The Act further provides that “no person shall be capable of been
taken in adoption unless the following conditions are fulfilled, namely:
(i) he or she is a Hindu;
(ii) he or she has not already been adopted;
(iii) he or she has not been married, unless there is custom or usage
applicable to the parties which permits persons who are married
been taken in adoption; and
(iv) he or she has not completed the age of 15 years, unless there is a
custom or usage applicable to the parties which permits persons
who have completed the age of 15 years been taken in adoption 8 2 .”
Section 11 of the Act prescribes certain other conditions to be
complied with for a valid adoption. The adoptive father or mother cannot
take in adoption a child if they have a living son or daughter. If a son is
adopted the father or the mother must not have a male child living and in
case of adoption of a girl child, the adoptive father or mother must not
have a living girl child. If a male adopts a female child he must be atleast
21 years older than adopted child. Likewise, if a female adopts a male
child, she must be older than the child atleast by 21 years. Two or more
persons cannot simultaneously take the same child in adoption.
The adopted child is deemed to be the child of his adoptive father
or mother thereby severing all the family ties from the family of his birth
and a validly made adoption cannot be cancelled. The Act also prohibits
taking or giving money or other consideration by any person,
contravention of which will attract six months imprisonment or with fine
or with both.
(3) Maintenance:
Section 20 of the Act provides that subject to the provisions of the
Act, a Hindu is bound during his or her lifetime to maintain his or her
legitimate or illegitimate children and his or her aged or infirm parents.
The children are entitled to claim maintenance so long as they are minor.
The Act also provides that the heirs of a deceased Hindu, are bound to
maintain the dependants of the deceased out of the estate inherited by
82
Ibid; Section 10.
 70

them from the deceased 8 3 . Courts have been given discretionary power to
decide on the amount of maintenance to be paid and in doing so due
regard shall be given to the position and status of the parties, the
reasonable want of the claimant, value of the claimant’s property and also
the number of persons entitled for maintenance 8 4 . Depending upon the
change of circumstances, the amount of maintenance may also be
altered 8 5 .
The Hindu Minority and Guardianship Act, 1956:
Guardianship as conceived was, in most systems, an extension of
paternal power. But in modern law, it essentially implies an idea of
protection. Under the Hindu Minority and Guardianship Act, 1956, S.4(b),
minor means a person who has not completed the age of eighteen years. A
minor is considered to be a person who is physically and intellectually
imperfect and immature and hence needs someone’s protection. In the
most countries, the childhood is accorded protection in multifarious ways.
Guardian is “a person having the care of the person of the minor or of his
property or of both person and property”. It may be emphasized that in
the modern law guardians exists essentially for the protection and care of
the child and to look after its welfare. It is expressed by saying that
welfare of the child is paramount consideration. Welfare includes both
physical and moral well-being.
Guardians may be of the following kinds :
1. Natural guardian.
2. Testamentary guardian.
3. Guardian appointed or declared by the court.
There are two other types of guardians, existing under the Hindu
law, de facto guardians, i.e., self appointed guardians, and guardians by
affinity, i.e., guardians of a minor widow.
(1) Who is a Natural guardian? :

83
Ibid; Section 22(1).
84
Ibid; Section 23(1) and (2).
85
Ibid; Section 25.
 71

The natural guardians of a Hindu minor, in respect of the minors

person as well as in respect of minor’s property (excluding his or her
undivided interest in joint family property) are 8 6 -
(a) in the case of a boy or an unmarried girl- the father, and after him,
the mother:
Provided that the custody of a minor who has not completed the
age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate married girl- the
mother, and after her, the father;
(c) in the case of a married girl- the husband:
Provided that no person shall be entitled to act as the natural
guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(a) if he has completely and finally renounced the world by
becoming a hermit(vanaprastha) or an ascetic (yati or
sanyasi).
The explanation provided to this section says that the expressions
‘father’ and ‘mother’ referred to do not include a step-father and step-
mother”.
(2) Powers of natural guardian:
The natural guardian of a Hindu minor is empowered to do all acts
which are considered to be necessary or reasonable and proper for the
benefit of the minor or for the realization, protection or benefit of the
minor’s estate; but the guardian in no case bind the minor by a personal
covenant 8 7 . It is further provided that the natural guardian shall not,
without the previous permission of the Court:
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise,
any part of the immovable property of the minor, or
(b) lease any part of such property for a term exceeding five years or
for a term exceeding more than one year beyond the date on which
the minor will attain majority 8 8 .
86
Section 6, The Hindu Minority and Guardianship Act,1956.
87
Ibid; Section 8(1).
88
Ibid; Section 8(2).
 72

If the natural guardian has disposed of any immovable property in

contravention of the above provisions, such disposal is voidable at the
instance of the minor or any person claiming him 8 9 .
(3) Testamentary guardians:
A Hindu father entitled to act as the natural guardian can by will,
appoint a guardian in respect of minor’s person or property or in respect
of both and the guardian so appointed is called the testamentary guardian.
But if the father predeceases the mother, the testamentary guardian’s
appointment will have no effect till the death of the mother and after her
death the appointment can be revived if the mother dies without
appointing any guardian. A Hindu widow or a Hindu mother who are
entitled to act as a natural guardians as also empowered to appoint a
guardian by will in respect of the minor’s person or property or both. A
Hindu mother of any illegitimate child has also the power to appoint a
guardian by will in respect of minor’s person or property or both.
The testamentary guardian appointed has the right to act as the
minor’s guardian after the death of the minor’s father or mother, as the
case may be, and has the power to exercise all the rights of a natural
guardian as provided under this Act. The right of a testamentary guardian
of a girl child ceases with the marriage of the concerned child.
A minor is not held to be competent enough to act as a guardian of
the property of any minor and also when the minor has undivided interest
in joint-family property under the management of an adult member, no
guardian can be appointed for such undivided interest.
However, all such measures in the appointment or declaration of
any person as guardian of a Hindu minor by a court, the welfare of the
minor child should be of paramount consideration.
Child Labour Policy in India
After a plethora of laws containing provisions to prevent child
labour, it was soon realized that child labour is still a problem. Taking
this in to consideration efforts were made to regulate the conditions of
child labour in order to avoid exploitation in areas where child labour
89
Ibid; Section 8(3).
 73

could not be avoided. The parliament, in 1986, enacted the Child Labour
(Prohibition and Regulation) Act, 1986 which repealed the Employment
of Children Act,1938. The Act prohibits the employment of children in
certain occupation and process, while regulates the conditions of work in
other jobs. Children are prohibited from employment in bidi making,
carpet weaving, cement manufacturing, soap manufacturing, dyeing,
tanning, weaving, match manufacturing, explosives and fireworks, mica
cutting and splitting, building and construction work 9 0 . The prohibition
applies only to the child who is not yet attained the age of fourteen.
Contraventions of the provisions prohibiting the employment of children
in certain occupations can lead to the imposition of penalties in the form
of imprisonment for a term of three months or fines between Rs.10,000
and Rs.20,000 9 1 . The Act provides for the protection of working children
not employed in specific hazardous occupation and process. It sets limits
on the number of hours children can work continuously. The main
objective of this scheme is to reduce the incidence of child labour in the
project area and encouraging elimination of child labour. In other words,
the main objectives of the Act are:
(i) To bring uniformity in the definition of child in the related laws.
(ii) To ban the employment of children in specific occupations and
processes.
(iii) To modify the scope banned industries and processes by laying
down a procedure.
(iv) To regulate the condition of work of children when they are not
prohibited from working.
(v) To lay deterrent punishment for violators.
The Amendment Act of 2006 amends the schedule (Part A) to add to
the list of occupations in which employment of children is prohibited.
This amendment prohibits the employment of children as domestic
workers or servants and the employment of children in dhabas,
restaurants, hotels, tea shops, resorts or other recreational centres.
Besides this legislation, some other legislative provisions have also been
90
Myron Weiner, “Child and the State in India:Child Labour and Education Policy in Comparitive”.
“Child Labour and Compulsory Education Policy”, Oxford University Press, New Delhi (1991).
91
Section 14(a), Child Labour (Prohibition and Regulation) Act, 1986.
 74

enacted for the protection of children. Some such enactments in the field
of child labour are :
a) Children (Pledging of Labour) Act 1933: Under this Act pledging of
labour of the children is prohibited and penalty for parents /
guardians pledging child labour has been described.
b) The Factories Act, 1948: Prohibits the employment below fourteen
years in a factory. An adolescent between fifteen and eighteen
years can be allowed to work in a factory only if he obtains a
certificate of fitness from an authorised medical doctor.
c) The Mines Act, 1952: Defines a child below fifteen years. The Act
not only prohibits the employment of children in mines, but also
prohibits the presence of children in any part of the time which is
below ground or above.
d) The Plantation Labour Act, 1951: The Act prohibits the
employment of children less than 12 years 9 2 . An adolescent between
15-18 years cannot be employed for work unless he is fit for work
by a surgeon 9 3 . Use of a false certificate is punishable by
imprisonment which may extend to one month or with fine or
both 9 4 .
Thus, when child labour is designated as a condition from which
children have a right to be free and not merely an option for which
regulating standards must be devised, there results an opportunity for
empowerment and mobilization that otherwise is lacking. A right based
approach to child labour elevates the need and interest of children in this
context so societal needs and interest- societal goods with associate
claims of legal and political legitimacy 9 5 .
The Immortal Traffic Prevention Act, 1956
The Immortal Traffic Prevention Act, 1956 is the primary
legislative provision against trafficking and prostitution. It seeks to
prohibit commercial sexual abuse, exploitation and traffic in persons.

92
Section 24, The Plantation Labour Act, 1951.
93
Ibid; Section 26.
94
Ibid; Section 34.
95
Burns H. Weston and Mark B. Teernik, “Rethinking Child Labour : A Multidimensional Human Rights
Problem, Child Labour and Human Rights”, 3 (2007).
 75

Prostitution is the sexual exploitation or abuse of person for commercial

purpose 9 6 . It was observed by the Madras High Court in Re Ratnamala and
Another 9 7 that the purpose of the Act is to inhibit or abolish
commercialized vice namely, the traffic of women and girls for the
purpose of prostitution as an organized means of living. Under this Act, a
child is defined as a person below the age of 16 and as it uses the word
'person', it can be applied to protect both boys and girls against
exploitation. The issue of child prostitution was examined by the Supreme
Court in Vishaljeet vs Union of India, wherein directions were issued to
States and Union Territories for eradicating 9 8 child prostitution and to
adopt programmes for the care, protection, treatment, development and
rehabilitation of victims. Again, in Gaurav Jain vs Union of India 9 9 ,
directions were issued for the constitution of a Committee for the
examination of this problem and for segregation of children of prostitutes
and to integrate them into society.
Besides the Immoral Traffic Prevention Act, 1956, various
provisions of the Indian Penal Code, 1860 can also be applied for the
prosecution of various offences against street children, including cases of
abuse. Further, in this context, it may be noted that in the State of Goa, in
the year 2003, a new legislation, the Goa Children's Act was enacted,
which, inter alia, provides for the protection of children against sexual
abuse 1 0 0 and other forms of commercial exploitation. Similar legislations
can be introduced in other states or at the Central level and may be use
for the effective protection of children including street children.
Commission for Protection of Child Rights
In 2006, the Indian Parliament enacted a new legislation for the
establishment of Commissions for the protection of child rights at the
national and state levels. This Act defines children's right to include all
the rights included in the Convention on the Rights of Child, 1989. The
96
Section 2(f), Immoral Traffic Prevention Act, 1989.
97
AIR 1962 Mad. 31.
98
AIR 1990 SC 1412.
99
AIR 1990 SC 3021.
100
The provisions inter alia, with respect to rape (Section 375),outraging the modesty of a woman (Section
354), and unnatural offences (Section 377) may be applied to such cases.
 76

functions of the Commission include inter alia, examination and review of

the safeguards provided by or under any law for the time being in force
for the protection of child rights and recommend measures for their
effective implementation, examination of factors inhibiting the enjoyment
of the rights of the child, spreading child rights literacy among the
various sections of the society, inspecting juvenile homes and other such
places of residence or institutions meant for children, and looking into the
mattes relating to children in need of special care and protection. The act
also provides for the establishment of 'children's courts' for the speedy
trials of offences against or of violations of child rights 1 0 1 .
The Street Children (Protection of Rights) Bill, 2001
In 2001, a new bill, the Street Children Protection of Rights Bill,
was introduced in the Parliament. The Statement of Objects and Reasons
of this Bill notes that despite the various policies, programs and
legislations on the protection of children, the child remains one of the
most exploited and abused section of society and recognises the necessity
of laying down by law, the basic rights of children including street
children, abandoned and neglected children. This Bill sought to define
street children as "The deprived children with unknown parentage,
abandoned and neglected children, including destitute children of sex
workers 1 0 2 ". The Bill sought to enjoin upon the Government to lay down a
policy for street children, and establish a National Commission for Street
Children 1 0 3 . It recognises, inter alia, the rights of street children to proper
means of living, due care and protection and security of life, basic
education, training and means for free and fair development of the
personality, as well as enjoyment of the highest attainable standard of
health, medical care and nutrition 1 0 4 . It also provides for the
establishment of a Street Child Development Fund. This Bill has however,
not been passed till date. Steps have to be taken to ensure that the
legislation in this regard is enacted. In fact, it may be noted here that in

101
Section 25, The Commissions for Protection of Child Rights, Act 2005.
102
Clause 2 (i),The Street Children (Protection of Rights) Bill, 2001.
103
Clause 3 and 4, Id.
104
Clause 7, Id.
 77

Sheela Barse v. Union of India 1 0 5 , the Apex Court had noted that a
Children's Act must be enacted by Parliament to provide for ensuring
social, economic and psychological rehabilitation of children who are
either accused of offences or abandoned or are destitute or lost. While the
Juvenile Justice (Care and Protection of Children) Act, 2000 does contain
certain provisions in this regard, they have not been implemented so as to
protect street children.
The Prohibition of Child Marriage Act, 2006
Presently Child Marriage is one of the biggest problems of
society that crushes the seeds before growing. Child marriage deprives a
person from all opportunities that are provided by society because a child
marriage could not avail the option to grow himself before marriage.
A person who neither knows the worth of the relations nor
understand to maintain them, when forcefully tied in such relations by
their parents put them in complications and burdens that ultimately leads
to hardship and adversely affects his personal life.
There is a plethora of matrimonial laws in India but approx. 45%
of marriage is conducted in which the bride has not attained the age of 18
throughout the India. In the year 2005-2006 state-wise statistics relating
to child marriage are as under-
Rajasthan -57%
Jharkhand -61%
Bihar -60%
Andhra Pradesh -55%
Madhya Pradesh -53%
Uttar Pradesh -53%
West Bengal -53%
Chhattisgarh -52%
Originally the problem of child marriage is not related to Aryan
philosophy and it was unknown in the Rig Vedic Period (1000-1500
B.C.).It got its roots in the Mughal period. At that time people were in
fear that if the female child is allowed to mature before marries someone
105
AIR 1986 SC 1773.
 78

may molest her modesty. They were worried about their daughters and
keep them confined in their homes. Thus, in order to safeguard and
maintain prestige, their daughters were married at early age.
The past experience of ‘Sharda Act’ required few amendments for
insertion some new concept and thought to make stronger the Act for the
prohibition of solemnization of child marriage and for other matters
connected therewith. Indian Parliament enacted the new law which is
called the “Prohibition of Child Marriage Act, 2006”. It received the
assent of the President on 10 Jan 2007.
Though there are many merits of the new Child Marriage Restraint
act yet efforts are made to focus new fallacies and concepts that emerge
with new Act passed for the prohibition of child marriage.
(1) Best features of the Act-
This Act extends to the whole of the India except Jammu and
Kashmir. It applies to all citizens of India. It allows the old provision
relating to age for marriage of party. It means still the age for marriage is
18 for female and 21 for male party.
(i) Marriage may be Voidable:
In old Act of 1929 there was no provisions relating to voidable
marriage. New Act explains some conditions in which any party of child
marriage can declare the marriage void 1 0 6 . The provisions are as under-
A. A marriage shall be voidable at the option of the contracting party
who was a child at the time of the marriage.
B. Only the party of the marriage may file petitions for nullity of
marriage.
C. If the petitioner is minor at the time of filing the petition, his or her
guardian or next friend along with the Chief Marriage Prohibition
Officer may file petition.
D. The petition may be filed up to only completion of 2 years from the
date of majority. It means girl can file petition up to the age of 20
and boy can file petition up to the age of 23.
E. District Court shall make an order for both parties to return all
106
Section 3, The Prohibition of Child Marriage Act,2006.
 79

money, valuable ornaments and other gifts received on the occasion

of marriage.
F. Without giving show cause notice by concerned parties to appear
before, the District Court shall not pass the order.
(ii) Child Marriage Prohibition Officer:
For the purpose of preventing child marriage, State Government
shall appoint an officer or officers to be known as the Child
Marriage Prohibition Officer for the whole state or different parts
of the state. The officer shall be deemed to be public servant within
the meaning of Section 21 of the Indian Penal Code.
(iii) Marriage of a minor may be Void:
Marriage of a child being a minor shall be null and void in certain
circumstances 1 0 7 . They are as under:
If a minor is-
A. taken or enticed out of the keeping of the lawful guardian; or
B. by force compelled, or by any deceitful means induced to go
from any place; or
C. Sold for the purpose of marriage and made to go through a form
of marriage; or
D. married after which the minor is sold or trafficked or used for
immoral purposes.
(iv) Legitimacy and Custody of children born of the Child Marriage:
Birth of children is possible under the voidable marriage. If a party
file a petition to declare void the children marriage, legitimacy of
children born of the child marriage may be a problem. Such types of
children shall be deemed to be a legitimate child for all purposes 1 0 8 . So
we can say children of the child marriage will get all rights in the
property of mother and father.
For the custody of such children court has discretionary power to
make an appropriate order. Welfare and best interest of the child shall be
the paramount consideration to be given by the District Court. The Court

107
Ibid; Section 12.
108
Ibid; Section 6.
 80

may also direct the contracting party or their parents or guardian for
providing maintenance to children of the child marriage.
(v) Punishment:
According to Section 15 of the Act, an offence punishable under
this Act shall be Cognizable and Non Bailable. Sections 9, 10 and
11 declare the punishment for offence relating to child marriage
under the Act of 2006.
A. If a male adult above the age of 18 contracts a child
marriage-
A boy who is above the age of 18 contracts a child marriage
shall be punishable with rigorous imprisonment that may
extend to 2 years or with fine up to Rs. 100000 or with both.
B. Punishment for solemnization of child marriage-
Any person who performs, conducts, directs or abet any
child marriage may be punished with rigorous imprisonment
that may extend up to 2 years or with fine up to Rs one lakh
or with both.
C. Punishment for promoting or permitting child
marriage-
Any person having charge of the child as a parent or guardian
or any other person in any capacity promotes or permits child
marriage or negligently fails to prevent it from being
solemnized may be punished with rigorous imprisonment,
which may extend to two years and shall also be liable to fine
that may extend upto one lakh rupees but no women shall be
punished with imprisonment.
 81

CHAPTER - V
JUDICIAL TRENDS

India is sadly the home to the largest number of child labourers in

the world. The census found an increase in the number of child labourers
from 11.28 million in 1991 to 12.59 million in 2001. M.V. Foundation in
Andhra Pradesh found nearly 400,000 children, mostly girls between
seven and 14 years of age, toiling for 14-16 hours a day in cottonseed
production across the country of which 90% are employed in Andhra
Pradesh.Child Labour in India 40% of the labour in a precious stone
cutting sector is children. NGOs have discovered the use of child
labourers in mining industry in Bellary District in Karnataka in spite of a
harsh ban on the same. In urban areas there is a high employment of
children in the zari and embroidery industry.
Poverty and lack of social security are the main causes of child
labour. The increasing gap between the rich and the poor, privatization of
basic services and the neo-liberal economic policies are causes major
sections of the population out of employment and without basic needs.
This adversely affects children more than any other group. Entry of multi-
national corporations into industry without proper mechanisms to hold
them accountable has lead to the use of child labour. Lack of quality
universal education has also contributed to children dropping out of
school and entering the labour force. A major concern is that the actual
number of child labourers goes un-detected. Laws that are meant to
protect children from hazardous labour are ineffective and not
implemented correctly.
A growing phenomenon is using children as domestic workers in
urban areas. The conditions in which children work is completely
unregulated and they are often made to work without food, and very low
wages, resembling situations of slavery. There are cases of physical,
sexual and emotional abuse of child domestic workers. The argument for
domestic work is often that families have placed their children in these
homes for care and employment. There has been a recent notification by
 82

the Ministry of Labour making child domestic work as well as

employment of children in dhabas, tea stalls and restaurants "hazardous"
occupations.
According to HAQ: Centre for child rights, child labour is highest
among schedules tribes, Muslims, schedule castes and OBC children. The
persistence of child labour is due to the inefficiency of the law,
administrative system and because it benefits employers who can reduce
general wage levels. HAQ argues that distinguishing between hazardous
and non hazardous employment is counter-productive to the elimination
of child labour. Various growing concerns have pushed children out of
school and into employment such as forced displacement due to
development projects, Special Economic Zones; loss of jobs of parents in
a slowdown, farmers' suicide; armed conflict and high costs of health
care. Girl children are often used in domestic labour within their own
homes. There is a lack of political will to actually see to the complete ban
of child labour.
Bonded child labour is a hidden phenomenon as a majority of them
are found in the informal sector. Bonded labour means the employment of
a person against a loan or debt or social obligation by the family of the
child or the family as a whole. It is a form of slavery. Children who are
bonded with their family or inherit a debt from their parents are often
found in agricultural sector or assisting their families in brick kilns, and
stone quarries. Individual pledging of children is a growing occurrence
that usually leads to trafficking of children to urban areas for employment
and have children working in small production houses versus factories.
Bonded labourers in India are mostly migrant workers, which opens them
up to more exploitation. Also they mostly come from low caste groups
such as dalits or marginalised tribal groups. Bonded child labourers are at
very high risk for physical and sexual abuse and neglect sometimes
leading to death. They often are psychologically and mentally disturbed
and have not learnt many social skills or survival skills.
In 2000 the ILO estimated 5.5 million children had been forced in
labour in Asia, while the Bonded Labour Liberation Front placed 10
 83

million bonded children in India alone. In 1998 the government of India

labelled bonded child labour as a marginal problem with only 3000 or so
cases. A survey in Tamil Nadu in 2016 found 125,000 bonded child
labourers in the state alone. Child bonded labour in India is mostly in the
agricultural sector but has in recent times been moving into other sectors
as well such as beedi-rolling, brick kilns, carpet weaving, commercial
sexual exploitation, construction, fireworks and matches factories, hotels,
hybrid cottonseed production, leather, mines, quarries, silk, synthetic
gems, etc. Child Labour in India
\Code Of Criminal Procedure 1973
The following provisions are relevant for the children’s point of
view:
(1). Jurisdiction in the case of Juveniles:
Section 27 of the code coming under chapter III which deals with
power of courts has reference to the jurisdiction in the case of juveniles.
It says:
“Any offence not punishable with death or imprisonment for life,
committed by any person who at the date when he appear or is brought
before the court is under the age of sixteen years may be tried by the
court of a Chief Judicial Magistrate, or by any Court specially empowered
under the children Act, 1960(60 of 1960) or any other law for the time
being in force providing for the treatment, training and rehabilitation of
youthful offenders”.
(2) Restoration of abducted females:
Section 98 deals power to compel restoration of abducted females
which says that: “upon complaint made on oath of the abduction or
unlawful detention of a woman, or a female child under the age of
eighteen years , for any unlawful purpose, a district magistrate , sub-
divisional magistrate or magistrate of the first class may make an order
for the immediate restoration of such woman to her liberty, or of such
female child to her husband, parent, guardian or other person having the
lawful charge of such child, and may compel compliance with such order,
using such force as may be necessary’’.
 84

(3) Maintenance of wives, children and parents :

Order for maintenance of wives, children and parents has been
provided under section 125 of the code and it’s says. “if any person
having sufficient means neglect or refuses to maintain-
(a) his wife, unable to maintain herself, or
(a) his legitimate or illegitimate minor child, whether married or not,
unable maintain itself, or
(b) his legitimate or illegitimate child( not being a married daughter)
who has attain majority, where such child is, by reason of any
physical or mental abnormality or injury unable to maintain itself,
or
(c) his father or mother, unable to maintain himself or herself,
(4) Release on probation of good conduct :
Convicted person can be released in probation of good conduct if
the court is satisfies that the offender should be released on probation of
good conduct 1 0 9 .
“when any person not under twenty one years of age is convicted of
an offence punishable with fine only or with imprisonment for a term 7
years or less, or when any person under twenty one years of age or any
woman if convicted of any offence not punishable with death or
imprisonment for life , and no previous conviction is proved against the
offender, if it appears to the court before which he is convicted, regard
being had to the age, character or antecedents of the offender, and to the
circumstances in which the offence was committed, that it is expedient
that the offender should be released on probation of good conduct , the
court may, instead of sentencing him at once to any punishment, direct
that he be release on his entering in to a bond, with or without sureties, to
appear and receive sentence when called upon during such period (not
exceeding 3 years ) as the court may direct and in the mean time to keep
the peace and be of good behaviour”.
Juvenile Justice (Care and Protection of Children) Act, 2000.
The Juvenile Justice (Care and Protection of Children) Act, 2000 is
109
Section 360, Code of Criminal Procedure,1973.
 85

a comprehensive legislation to provide justice and opportunities to

children of India for their growth and development. The Act is based upon
the provisions of the Indian Constitution and four broad rights of the UN
Convention on the Rights of the Child including right to Survival,
Protect6ion, Development and Participation. Certain amendments have
been effected in the Act recently. The Act defies two categories of
children namely 'juveniles in conflict with the law' and 'children in need
of care and protection'. While the former category refers to children who
have allegedly committed an offence, the latter refers to neglected
children including inter alia, those that are 'found without any home or
settled place of abode and without any ostensible means of subsistence 1 1 0 .
The Juvenile Justice Act (Care and Protection) Act, 2000 under
section-2 1 1 1 recognises that children who are or who are likely to be
victims of abuse, torture or any form of sexual abuse are children in need
of care and protection. The Act besides laying down a uniform and
separate system of justice for children also make it incumbent upon the
State to take care of the delinquent or neglected children, socially
maladjusted children, children without families and homes, children
found begging, children whose parents/ guardians are unable to take care
of them and children living in brothels or being abused or exploited in
any manner, and would also cover street-children, although the expression
has not been used in therein. It provides that no juvenile in conflict with
law can be placed under imprisonment for any term, which may extend to
imprisonment of life. The Act has, therefore, been made more child-
friendly to protect children from exploitation and violence 1 1 2 .

Features of the Act:

(a) It provides a uniform age of 18 years for both boys and girls to be
treated as children which is based on the United Nations
Conventions on the Rights of the Child, 1989.

110
Section 2 (d) and (l), Juvenile Justice (Care and Protection of Children) Act, 2000.
111
Section 2, In this Act, unless the context otherwise requires- d "child in need of care and protection"
means a child (vi) who is being or is likely to be grossly abused, tortured or exploited for the purpose of
sexual abuse or illegal acts.
112
The Child and The Law, Papers from International Conference on Shaping the future by law : Children,
Environment and Human Health, March (1994), The Juvenile Justice (Care and Protection of Children)
Act, 2000.
 86

(b) There is a differential treatment for two categories of children,

namely, child in need of care and protection and juvenile in conflict
with law.
(c) The Act also directs that the cases related to juveniles should be
decided within the period of four months.
(d) It has also been made compulsory to set up a Juvenile Justice Board
either for a district or group of districts.
(e) All the offences against a juvenile have now been made cognizable
offences.
(f) The Act sets up Special Juvenile Police Units through sensitisation
and training of such police personnel to perform their functions
more effectively.
(g) Role of voluntary organisations and local authorities has been
specified for involving them at various stages for handling and
rehabilitating children.
(h) Special emphasis has been made on the rehabilitation and social
reintegration of children and the alternatives provided for the same
are adoption, foster care, sponsorship and after-care.
(i) The new Act allows for adoption of a child within the purview of
this Act by any eligible couple or single individual. The Juvenile
Justice Board has been empowered to give such children in
adoption even to a single parent and to parents to adopt a child of
the same sex irrespective of the number of their biological sons or
daughters.
1. Child Protection Unit
The Juvenile Justice (Care and Protection of Children) Amendment
Act, 2006 has inserted a new Section 62-A which envisages constitution
of a Child Protection Unit for every District consisting of such officers
and other employees as may be appointed by that Government to take up
matters relating to children in need of care and protection and juveniles in
conflict with a view to ensure the implementation of this Act. It includes
the establishment and maintenance of homes, notification of competent
authorities in relation to these children and their rehabilitation and
 87

coordination with various official and non official agencies.

It also provides for the care, protection, treatment, development
and rehabilitation of neglected and delinquent children. The Act provides
for a separate Child Welfare Board, as well as for the establishment of
shelter homes and children's home in respect of children in need of care
and protection. The Government of India provides financial assistance to
the State Governments/UT Administrations for establishment and
maintenance of various homes, salary of staff, food, clothing etc. for
children in need of care and protection and juvenile in conflict with law.
2. Judicial Decisions
Regarding basic rights and plight of juvenile offender, P.N.
Bhagwati and R.S. Pathak, JJ., in Munna v. State of U.P. 1 1 3 held:
"Juvenile delinquency is by and large the product of social and
economic maladjustment. Even if it is found that these juveniles have
committed any offence, they cannot be allowed to be maltreated. They do
not shed their fundamentals rights when they enter the jail. Morever, the
objective of the punishment being reformative, we fail to see what social
objective can be gained by sending them to jail where they come in
contact with hardened criminals and lose whatever sensitivity they may
have to finer and nobler sentiments."
Further in Jayendra v. State of U.P. 1 1 4 , it observed that even if a
child is found to have committed an offence punishable with
imprisonment the court may order him to be sent to an approved school
and not to jail.
In Randeo Chauhan v. State of Assam 1 1 5 , it was held that whenever
any delinquent juvenile accused of an offence irrespective of the
punishment imposable by law is produced before a Magistrate or a court,
such Magistrate or Court, after it is brought to its notice or is observed by
the Magistrate or the court itself, that the accused produced before it was
under the age of 16 years, shall refer the accused to the Juvenile Courts if
the Act is applicable in the State and the courts have been constituted or
113
AIR 2009 SCC 546.
114
AIR 2009 Cr LJ600.
115
AIR 2001 SCC 714.
 88

otherwise refer the case to the Court of the Chief Judicial Magistrate who
will deal with the matter in accordance with the provisions of law.
Protection of Children under Indian Evidence Act,1872:
Section 112 of the Indian Evidence Act speaks of legitimacy of a
child:
“The fact that any person born during he continuance of a valid a
marriage, between his mother and any man, or within two hundred and
eighty days after its dissolution, the mother remaining unmarried, shall be
conclusive proof that he is the legitimate son of that man unless it can be
shown that the parties to the marriage had no access to each other at any
time when he could have been begotten.”
Regarding evidence of a child witness, Evidence Act provides that:
“All persons shall be competent to testify unless the court considers
that they are prevented from understanding the questions put to them, or
from giving rational answers to those questions by tender years, extreme
old age, disease, whether of body or mind, or any other cause of the same
kind 1 1 6 .”
A child even of 6 or 7 years of age may be allowed to testify if the
court is satisfied that they have capacity to give rational testimony. A
child of tender years is a competent witness when such child is
intellectually sufficiently developed to understand what he or she had
seen and afterwards to inform the court about it. Before the evidence of a
child may be recorded the court must, by preliminary examination test his
capacity to understand and to give rational answers and must form an
opinion as to the competency of the witness 1 1 7 . It was held in Sitaram v.
State of M.P 1 1 8 . that evidence of a child witness can be relied on for
conviction of murder when the testimony is consistent and corroborated
by the child own conduct. Further, Since children are most dangerous
witnesses, for due to tender age they often mistake, dreams for reality.
They are capable of cramming things easily and reproducing them. They
repeat as to their own knowledge that they have heard from others and are
116
Section 118, Indian Evidence Act,1872.
117
Batuk Lal, ”The Law of Evidence” at p. 410.
118
AIR 1975 SCC 464.
 89

greatly influenced by fear of punishment, by hope of reward and by desire

of notoriety. Hence it is unsafe to rely on uncorroborated testimony of a
child as held in Nirmal Kumar v. State of U.P 1 1 9 .
Critical Appraisal
The various laws and policies currently in operation in India have
numerous provisions that can be utilized for the protection of rights of
children. However, these provisions are not being utilized effectively in
this behalf and numerous children are deprived of many of their basic
human rights. There are also a number of drawbacks in the various laws
and policies that impede the efficacious protection of the rights of
children.
An important issue raised by the various legal provisions
concerning children is that there is no uniformity in defining who is a
child and as noted earlier, the age limits for defining a child differs in
various legislations. As a result, the protection available to different
categories of children would vary according to which legislation would be
applicable to them. The law is also deficient from the international
standards as laid down by I.L.O. The reason for not being at par with
international standard is because of the economic backwardness 1 2 0 .
According to I.L.O. the minimum age of employment is fifteen years,
although reduction is possible in developing countries 1 2 1 . Also, in
employments in very high risk provisions such as mines, where the ILO
lays down an age limit of 21 years, the limit as per the Mines Act, 1952
in India, it is 16 years.
According to the Constitution of India every child has a right to
primary education and its compulsory and the State has been given
powers to make the primary education compulsory. But this right has
really not been available to the children due to various reasons. The
implementation mechanism is not strong.
To ensure speedy proceedings, the JJ Act, 2000 specifies that

119
AIR 1952 SC 1131.
120
S.N. Jain,” Introduction, Child and the Law”, 16 (1979).
121
Swami Agnivesh, “The Child and the Law”, "Child Slavery in India", papers from International
Conference on Shaping the future by law: Children, Environment and Human Health, 40-47 (1994).
 90

proceedings "shall be completed within a period of four months from the

date of (their) commencement," but with exception if the "period is
extended by the Board having regard to the circumstances of the case and
in special cases after recording the reasons in writing for such
extension 1 2 2 ." This discretion permits cases to languish in the system
indefinitely. Due to lack of reporting mechanism, the percentage of cases
that lasts longer than four months is unknown. However, the existence of
any such case that does not have proper justification violates the JJ Act.
The Juvenile Justice system needs to be more effective to include
the children of any categories for instance when the rag picker children
are being arbitrarily and illegally arrested and detained, this Act is likely
to be irrelevant and S.26 1 2 3 of the Act cannot be applied to rag pickers as
they are self-employed. The Juvenile Justice should be friendlier towards
the child and it should deliver the justice within its time. In Delhi itself
there are 4000 cases pending in the Juvenile Board for over four years. It
has to be ensured that children who are not 'Juveniles in conflict with the
law' are treated as 'children in need of care and protection' and adequately
protected.
The observation homes or the shelter should have and inadequate
facilities because the children does not like to go there because of its lack
of basic facilities. There is a need for proper maintenance. It has been
observed that it lacks basic facilities and the proper care is not taken of
the child also there is lack of good teachers. Because of its lack of
facilities children does not like to go there.
The NGO's should be provided adequate fund to keep it running
properly for the children and the government should help them to carry
out their work. The NGO's should have sufficient teachers who are well
trained.
At the policy level also, there have been a number of problems in
the effective protection of children. For instance, a child budget exercise
122
The Juvenile Justice (Care and Protection of Children) Act, 2000.
123
Exploitation of Juvenile or child employee : Whoever ostensibly procures a juvenile or child for the
purpose of any hazardous employment and keep him in bondage and withholds his earnings or uses such
earning for his own purpose shall be punishable with imprisonment for a term which may extend to
three years and shall also be liable to fine.
 91

carried out by the Ministry of Women and Child Development revealed

the persistently low level of fund allocation for child protection. The total
share of child protection in the Union budget for 2005-06 was just 0.034%
and the budget estimates for the current financial year 2006-07 has
remained the same. Scarcely any allocations have been made for child
protection since independence, a reflection of the low priority sector has
received in government's own planning and implementation, resulting in
scant State interventions toward child protection 1 2 4 .
Another area of concern is regarding the Integrated Programme for
Street Children. Despite continuous efforts of the government, street
children continue to be in a precarious situation. The programme has so
far benefited, 1040 children against the target of 1200 for first two years
of Tenth Plan. In addition, 840 children have been benefited under the
Shishu Greh Scheme, which is a part of this scheme. Child trafficking,
lack of a comprehensive policy on foster care and adoption to reach out to
the vast multitude of homeless and street children; inadequate data and
treatment of children affected by HIV/ AIDS and discrimination against
them; child marriage and associated problems of adolescent pregnancy,
deep neglect of their physical and cultural development, high drop-out
rates amongst girls post-primary schooling, inability of girls to cope with
their nascent sexuality and growing insecurity and increasing violence
against them; and protection of girl child domestic labourers, growing
numbers of child beggars with no policy for protecting them; inadequate
attention to the physically and mentally challenged children; as others
areas of child protection which continue to cause concern 1 2 5 .
Children's access to the protection of human rights depend on how
and organisations defining those rights conceive of children and
childhood. The central issue is whether children are defined to be part of
humanity as a whole, sharing fully and equally in any fundamental rights

124
The Hindu, "Empty Stomach and the Union Budget", 9 March, New Delhi, 2007,
www.expressindia.com, "Budget 2007-08 is not child friendly". Report, Deccan Herald, Bangalore, 3
March, 2007.
125
Report of the Working group on Development of Children Labour for the Eleventh five year Plan, of
India, Shastri Bhawan, New Delhi ( 2004-2012).
 92

claimed for all human beings, or whether they are categorized as a

separate group having more, fewer or different rights than people who are
older 1 2 6 . A human right approach to child labour should pay attention to
empowering aspect of human rights instruments, including the rights of
children to express themselves and take action on their behalf.
Child Labour Welfare And Right To Education
The abolition of the child labour is preceded by the introduction of
compulsory education; compulsory education and child labour are
interlinked. Article 24 of the Constitution bars employments of child
below the age of 14 years. Article 45 which is incorporated by the 86 t h
amendment in 2002 which gives the direction to the state to provide
education to the child below the age of six years. 1 2 7
And the judiciary plays an important role in the making as
education as a fundamental right and the Judiciary gives a good
judgement in the cases like M.C Mehta vs. State of Tamil Nadu and
others 1 2 8 , Mohini Jain vs. State of Karnataka 1 2 9 , Unni Krishnan vs. State
of Andhra Pradesh 1 3 0 .
In M.C. Mehta vs. State of Tamil Nadu and others 1 3 1 The
Honourable Supreme Court observed that working conditions in the match
factories are such that they involve health hazards in normal course and
apart from the special risk involved in the process of manufacturing, the
adverse effect is a serious problem. Exposure of tender aged to these
hazards requires special attention. We are of the view that employment of
children in match factories directly connected with the manufacturing
process like uplift of final production of match sticks or fireworks should
not, at all, be permitted as Article 39 (f) prohibits it. In this case, Mehta‘s
1983 petition was first resolved by the Supreme Court of India in the year
1990. Mehta argued that the employment of children in the match and
126
Judith Ennew, William E. Myers and Dominique Pierre Plateau,” Defining Child Labour as if Human
Rights Really Matter”,” Child Labour and Human Rights”, (2007) 35.
127
45. Provision for free and compulsory education for children The State shall endeavour to provide,
within a period of ten years from the commencement of this Constitution, for free and compulsory
education for all children until they complete the age of fourteen years
128
AIR 1991 SC 417
129
AIR 1992 SC 1858
130
AIR 2016 SC 2178
131
AIR 1991 SC 417
 93

fireworks industry in Sivakasi was a violation of Indian‘s Constitution,

the Factories Act, 1948 the Minimum Wages Act, and the Employment of
Children Act.
The Court, consisting of Chief Justice Ranganath Misra and Justice
M.H, Kania, observed that ―employment of children in the match
factories directly connected with the manufacturing process upto final
production of match sticks and fireworks should not at all be permitted.
The Court found that the employment of children in the production of
matches and fireworks violated the spirit of the Constitution of India, in
particular its Directive Principles of State Policy. The Supreme Court
relied on articles 39(f) and 45 in making its judgment.
The judgment has five important components:
 In line with the Constitution‘s prohibition on the employment of
children in hazardous employment, the Supreme Court said that―
children can, therefore, be employed in the process of packing but
packing should be done in an area away from the place of manufacture
to avoid exposure to accident. The Apex Court acknowledged that the
Directive Principles of State Policy recommend that children should be
in school until the age of fourteen, but ―economic necessity forces
grown up children to seek employment.
 The Apex Court ordered that children be paid sixty percent of―
prescribed minimum wage for an adult employee in the factories doing
the same job. The judgement further stated that if the state feels that a
higher wage is viable, this decision ―should not stand in the way.
 The Court believes that special education facilities (both formal
And job training), recreation and specialization should be made to
provide for the quality of life of working children. To pay for these
facilities, the Court ordered the creation of a welfare fund, to which
registered match factories would be made to contribute. Upon the
recommendation of the counsel for the State of Tamil Nadu, the Court
also ordered that the Government should make a matching grant to the
fund.
 94

 The Supreme Court ordered the State of Tamil Nadu to provide

―facilities for recreation and medical attention. These facilities
were to include ―provision of a basic diet during the working
period and medical care with a view to ensuring sound physical
growth. It was recommended that the state will work with UNICEF
in making these facilities available.
 The Court ordered the creation of a compulsory insurance scheme
for both adults and children employed in the Sivakasi match
factories. All employees were to be insured for fifty thousand
rupees, and the premiums were to be paid for by the employer. The
Court concluded its decision by awarding Mehta three thousand
rupees as costs.
The other concern is that the Court appeared to give credence to the
―nimble fingers theory 1 3 2 of children‘s work. It stated : ―We take note
of the fact that the tender hands of the young workers are more suited to
sorting out the manufactured product and process it for the purposes of
packing.
This nimble fingers theory has been criticized by a number of
human rights organizations, including Human Rights Watch : ―In this
view, child labor is not an evil, but a production necessity. This
rationalization is a lie. In fact, children make the cheaper goods; only
master weavers make the best quality carpets and saris.
The Court did not create a disincentive for employers violating the
law or its order. Though the Court emphasized that employers must play a
role in maintaining the well-being of children at work, either through an
insurance scheme or contributing to the welfare fund, it did not even
mention the possible penalties they might incur for either failing to pay
children a minimum wage or employing children in the manufacturing
process.
The Court further observed that the spirit of the Constitution

132
Nimble Finger theory: This theory argues that dextrous hands of child are essential for production of
several articles of better quality like knotted carpets and similar types of articles.,
http://www.legalserviceindia.com/article/l216-Child-Labour.html, accessed on 16 March 2018
 95

perhaps is that children should not be employed in factories as childhood

is the formative period and in terms of Article 45 they are meant to be
subjected to free and compulsory education, until they complete the age
of 14 years. Children can, therefore, be employed in the process of
packing but packing should be done in an area away from the place of
manufacture to avoid exposure to accident.
The Honourable Supreme Court further observed that the state (in
this case Tamil Nadu) is directed to enforce provisions relating to
facilities for recreation and medical and attention may be given to ensure
provision of a basic diet during the working period to workers including
children and medical care with a view to sound physical growth. The
Court also opined that compulsory insurance scheme should be provided
for both adult and children employees for a sum of Rs. 50000 by taking
into consideration the hazardous nature of this employment.
It is submitted that The Factories Act 1948, states that ―No child
who has not completed his fourteenth year shall be required or allowed to
work in any factory. Hence, it is very strange how the Supreme Court
reconciled this prohibition on work ―in any factory” with its decision to
allow children to work in factories, provided they are packing matches,
and not manufacturing them.
The Government of India passed the Right to Education Act in 2009
making education compulsory and free upto the Age of 14 years and also
included Article 21A making Right to Education upto 14 years of age as
Fundamental Right.
The Court‘s decision was criticized on many accounts by number of
human rights organizations. The judgments is not progressive and, in fact,
incorrect at law. It is alleged that the Court again sought to balance the
child‘s economic needs against his or her fundamental rights rather than
prohibiting child labour. This decision, unlike the Court‘s previous order,
directly targeted the problem of poverty. It involved the state, employers,
families, and working children in a scheme to help reduce the causes of
child labour. The Court determined that if poverty is eradicated, child
labour will cease to exist.
 96

To this end, it hopes that state governments will replace child

workers with adult workers. 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.
Alternatively, if no other employment is available, then the hope is
that the Welfare Fund will provide some income to the family. In this
decision, the Court was restrained in its policy-making role. It did not
disclose any of the loopholes in the Child Labour Act, though it did
acknowledge that such loopholes exist. This deference to the legislature is
in keeping with the Court‘s previous PIL decisions. On the other hand,
the Court did make substantial policy through the expansion of the
Welfare Fund.
In Mohini Jain vs. State of Karnataka 1 3 3 Kuldip Singh J. held that
the right to education was part of the fundamental right to life and
personal liberty guaranteed by Article 21. This sudden elevation of the
right to education to the high constitutional pedestal created a
controversy. Aggrieved by this judgement some private educational
institutions, which run medical and engineering college challenged the
correctness of that proposition and the matter came before a larger bench
consisting of Justices Jeevan Reddy, Pandian, Mohan, Sharma and
Barucha JJ in Unni Krishnan vs. State of Andhra Pradesh 1 3 4 . In this case
three questions were raised for the court‘s determination namely:
(i) whether the Constitution of India guaranteed a fundamental right
to education to its citizen;
(ii) whether a citizen of India had the fundamental right to establish
and run an educational institution under article 19(1)(g) of the
Constitution;
(iii) whether the grant of permission to establish and the grant of
affiliation by a university imposed an obligation upon an educational
institution to act fairly in the matter of admission of students?
The court‘s judgment delievered by Jeevan Reddy J, on behalf of

133
AIR 1992 SC 1858
134
AIR 2016 SC 2178
 97

Pandian J. and himself. Two concurring judgment were written by Sharma

J. and Mohan J. Jeevan Reddi Justice, speaking on behalf of Pandian J.
and himself, agreed with the dicta of Mohini Jain that the right to
education flowed directly from the right to life guaranteed by article 21
of the Constitution. The judge, however, differed with the view adopted
by Kuldip Singh J, in that case on the content and sweep of that right.
Mohini Jain seemed to suggest that the citizens could demand that the
state must provide adequate number of medical college, engineering
colleges and other educational institutions to satisfy all their educational
needs. Differing with this formulation, the judge observed:
The right to education which is implicit in the right to life and
personal liberty guaranteed by Article 21 must be construed in the light of
the directive principle in Part IV of the Constitution…. The three articles
45, 46 and 41 are designed to achieve the said goal among others. It is in
the light of these Articles that the content and parameters of right to
education have to be determined. Right to education, understood in the
context of article 45 and 41 means (a) every child/citizen of this country
has a right to free education until he completes the age of fourteen years
and (b) after a child/citizen completes 14 years, his right to education is
circumscribed by the limits of the economic capacity of the State and its
development.
In Bandhua Mukti Morcha v. Union of India Ors 1 3 5 , this Court held
as under:-
This right to live with human dignity enshrined in Article 21
derives its life breath from the Directive principles of State Policy and
particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 and at
the least, therefore, it must include protection of the health and strength
of workers men and women, and of the tender age of children against
abuse, opportunities and facilities for children to develop in a healthy
manner and in conditions of freedom and dignity, educational facilities,
just and humane conditions of work and maternity relief. These are the
minimum requirements which must exist in order to enable a person to
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AIR 1984 SC 802
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live with human dignity and no State - neither the Central Government
nor any State Government - has the right to take any action which will
deprive a person of the enjoyment of these basic essential. The ―right to
educational, therefore, is concomitant to the fundamental rights enshrined
under Part III of the Constitution. The State is under a constitutional-
mandate to provide educational institutions at all levels for the benefit of
the citizens. The educational institutions must function to the best
advantage of the citizens.
We hold that every citizen has a right to education under the
Constitution. The State is under an obligation to establish
educational institutions to enable the citizens to enjoy the said right. The
State may discharge its obligation through state-owned or state-
recognized educational institutions. Indian civilization recognizes
education as one of the pious obligations of the human society.
The court, therefore, declared that ―a child (citizen) has a
fundamental right to free education up to the age of 14 years. Beyond 14
years, the right to education was subject to the limits of the economic
capacity of the state.
Further, to say that the right to education beyond primary was
subject to the economic capacity of the state was to make it almost
redundant. If a right to education is part of the right to live, how can it be
made dependent on the economic capacity of the state? If it is a
fundamental right, it has got to be enforced irrespective of the economic
capacity of the state. It is submitted that the economic incapacity ought
not to be a defence against violation or disregard of a fundamental right..
If once economic capacity becomes a defence for formulating the scope of
a fundamental right so many other aspects of article 21 would be in
jeopardy. This was the thin end of the wedge..
R.D. Upadhay vs. State of Andhra Pradesh and Others 1 3 6 In this
case, Chief Justice of India Y.K Sabharwal, observed that Article 45 of
our Constitution stipulates that the State shall endeavour to provide early
childhood care and education for all children until they complete the age
136
AIR 1976 SC 1855
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of six years. In this case the Apex Court also laid down a guidelines for
the education and recreation for children of female prisoners. In this case
the Apex Court observed, for the care, welfare and development of the
children, special and specific provisions have been made both in Part III
and IV of the Constitution of India, besides other provisions in these
parts which are also significant. The best interest of the child has been
regarded as a primary consideration in our Constitution. Article 15
prohibits discrimination on grounds of religion, race, caste, sex or place
of birth. Article 15(3) provides that this shall not prevent the State from
making any special provision for women and children . Article 21A
inserted by 86 t h Constitutional Amendment provides for free and
compulsory education to all children of the age of six to fourteen years.
Article 24 prohibits employment of children below the age of fourteen
years in any factory or mine or engagement in other hazardous
employment.
Supreme Court's “TEN COMMANDMENTS”
In M.C. Mehta vs. State of Tamil Nadu , the Supreme Court gave
certain directions on the issue of elimination of child labour, otherwise
the court issued “Ten Commandments” to the States concerned.
1. A survey would be made of the aforesaid type of child labour which
would be completed within six months from today (10th Dec. 1996).
2. Every employer offending in contravention of the provisions of the
Child Labour (Prohibition and Regulation) Act, 1986 (Central Act,
61 of 1986) must be asked to pay Rs. 20,000/- as compensation for
every child employed, as the liability of employer would not cease
even if he would desire to disengage the child presently employed.
3. The Inspectors appointed under section 17 of the said Act would see
that the said sum of Rs. 20,000/- in respect of each child is paid by
the delinquent employer and the same amount is deposited in ―Child
Labour Rehabilitation-cum-Welfare Fund.
4. The Child Labour Rehabilitation-cum-Welfare Fund shall be district-
wise to form a corpus of the income out of which shall be used only
for the concerned child. The amount can be deposited in a high
yielding scheme of any nationalized bank or other public body so as
 100

to generate higher income.

5. As this income will not suffice to dissuade the parent / guardians
from seeking employment of the child, it would be avowed obligation
of the State to provide employment to any of the adult member of the
family whose child is withdrawn from hazardous employment. As it
would practically strain the resources of the State, where it is not
possible to provide job to the adult members of such families which
would be in large numbers, the appropriate Government would, as its
contribution/grant, deposit in the aforesaid fund a sum of Rs. 5,000/-
per each child employed in hazardous occupation. This would either
see an adult of such family getting job in lieu of the child or deposit
of a sum Rs. 25,000/- in the said fund so as to enable the family to
withdraw its child from hazardous occupation.
6. A survey should be conduced to identify the existence of child labour
in these employments mentioned in Article 24 of the Constitution of
India on priority basis giving first rank to the most hazardous
employment to be followed by comparatively less hazardous
employment.
7. In cases where alternative employment could not be provided, the
parent /guardian of the concerned child would be paid every month
the interest earned on the corpus of Rs. 25,000/-, to meet the
educational expenses of the child so withdrawn. The employment
given or the payment made would cease to be operative, if the child
is not sent for education by the parent / guardian.
8. On discontinuation of the employment of the child, his education
would be assured as directed in Article 45 of the Constitution of
India that compulsory and free education should be provided to all
children till they attain the age of 14 years. The aforesad Inspectors
should see that this direction is complied with.
9. The Collector of the District as a unit of collection should be the
overseeing authority of the collection of funds. A separate Child
Labour Cell in the Labour Department shall monitor the operational
development of these units under the Collectors and the Secretary of
 101

Labour Department shall be the monitor to make the functioning of

this scheme beneficial and worthwhile.
10. On discontinuation of the employment of the child, his education
would be assured in suitable institution with a view to make him
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. It would be the duty of the
Inspectors to see that this call of the Constitution is carried out.
Supreme Court’s view on the Employment of Children
In Bandhu Mukti Morcha vs. Union of India 1 3 7 in this case a writ
petition Under Article 32 has been filed by way of Public Interest
Litigation seeking issue of a writ of mandamus directing the government
to take a steps to stop employment of children in carpet industry in the
State of Uttar Pradesh; to appoint a Committee to investigate into their
conditions of employment, and to issue such welfare directives as are
appropriate for total prohibition on employment of children below 14
years and directing the respondent to give them facilities like education,
health, sanitation, nutritious food etc.
The main contention by the petitioner group is that employment of
the children in any industry or in hazardous industry, is violative of
Article 24 of the Constitution and derogatory to the mandates contained
in Article 39(e) and (f) and 45 of the Constitution read with preamble.
Pursuant to the filing of the writ petition the apex court appointed a
commissioner to visit factories, manufacturing carpets and submit their
findings as to whether any numbers of children below the age of 14 years
are working in the carpet industry. The commissioner submitted his report
on 1st August 1991 stating that violation of Article 24 along with Article
39(e) and (f).
The Apex court observed that child of today cannot develop to be a
responsible and productive member of tomorrow‘s society unless an
environment which is conducive to his social and physical health is
assured to him. Every nation, developed and developing link its future
137
(1997) 10 SCC 549
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with the status of the Child.

Childhood holds the potential of the society. Children are the
greater gift to the humanity. Mankind has been hold of itself. The parents
themselves live for them. They embody the joy of life in them and in the
innocence relieving the fatigue and drudgery in their struggle of daily
life. Parents regain peace and happiness in the company of the children.
The children signify eternal optimism in the human being and always
provide and better equipped with a broader human output, the society will
feel happy with them. Neglecting the children means loss to the society as
a whole. If children are deprived of their childhood –socially,
economically, physical and mentally - the nation gets deprived of the
potential human resources for social progress, economic empowerment
and peace and order, the social stability and good citizenry. The founding
fathers of the Constitution, therefore, have bestowed the importance of
the role of the child in its best for development. Dr. Bhim Rao Ambedkar
was in forefront of his time in his wisdom and projected these rights in
the Directive Principle including the children as beneficiaries. Their
deprivation has deleterious effect or the efficacy of the democracy and
the rule of law.
In People’s Union for Civil Liberties vs. Union of India and
Others, 1 3 8 in this case some children procured for labour subsequently
killed or caused to be missing by the Procurer. On a filing of Public
Interest Litigation by a Non– Governmental Organization, the Supreme
Court observed that after accepting enforcement of Mr. Rajinder Sachar, a
learned counsel appearing for the petitioner pleaded that the parents of
the children were entitled to compensation and the counsel in support of
his contention relied on Verma J‘s observation in Nilabati Behara vs.
State of Orissa 1 3 9 that a claim in public law for compensation for
contravention of Human Rights and fundamental freedoms, the protection
of which is guaranteed in the Indian Constitution is an acknowledged
remedy for the enforcement and protection of such rights and such a claim

138
AIR 2009 SC 1473
139
AIR 2016 SC 1960
 103

based on strict liability made by resorting to a constitutional remedy

provided for the enforcement of Fundamental Rights is distinct from and
in addition to the remedy in private law for tort resulting from
contravention of Fundamental Right. The defence of sovereign immunity
being in applicable and alien to the concept of guarantee of Fundamental
rights, there can be no question of such a defence being available in the
Constitutional remedy. It is this principle which justifies award of
monetary compensation for contravention of Fundamental Rights
guaranteed under the Constitution, when that is the only practicable mode
of redress to the contravention made by the state or its servants in the
purported exercise of their powers and enforcement of the Fundamental
Right is claimed by resort to the remedy in public law under the
Constitution by recourse to Article 32 and 226 of the Constitution.
In Raj Kumar Tiwari vs. State, 1 4 0 in this case the petitioner-
employer was imposed Rs. 20000 as penalty for employing a child alleged
to be below the 14 years of age. He challenged this order contending that
before imposing penalty no enquiry was held. The High Court, although
found that an inquiry was indeed held, set aside this impugned order on
the ground that for the applicability of section 14 of the Act it is sine qua
non that the person / child employed must be one. According to the court
the impugned order itself in indicated that the child was set side.
It is submitted that there is a lot of difference between the
expression a person who has not completed 14 years of age ―and ―a
person who is 14 years old. While the latter would mean a person who has
completed 14 years of age and is in his 15th year, the former phrase
would mean a person who has completed 13 years of age and is in his
14th year. In the absence of exact date of birth to calculate whether the
person has completed 14 years of his age, the court could have upheld the
order of the lower court being the fact finding court. It may be seldom
that an employer is punished by the Court for employing a child. And this
is a major contributing factor for the continued employment of children
by unscrupulous employers.
140
AIR 1997 SC 699
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In Narender Malav vs. State of Gujarat 1 4 1 , in this case a Public

Interest Litigation was filed to the apex court related to the issues of
child labour in the salt mines of Gujarat. The court requested the amicus
curiae and a nongovernmental organisation, SEWA, to enquire and
investigate the issue of child labour, the welfare and well being of salt
mine workers and their families in the Saurashtra and Kutch areas of the
State of Gujarat, particularly with reference to education facilities for
their children and availability of a adequate / proper housing and medical
facilities and to report to the court with in three months. The court
requested the amicus curiae and the representative of the Non–
Governmental Organisation to interact with the empowered committee for
the purpose of ascertaining the measures taken by various agencies for the
welfare of salt workers and their families and to suggest ways and means
to improve these conditions. The court directed the state government
through the Assistant Labour Commissioner to provide all the assistance
for this purpose.
Association for Development and Others vs. Union of India and Others ,
on 7 November, 2013
The Delhi High Court held and observed that Child Labour is a
serious problem of Indian Community. Government authorities to
implement rules and regulations effectively in this regard. Further the
court appreciated the works of Dr. Yogesh Dube for his sustained efforts
and campaign against child labour. One Yogesh Dube, liberated numbers
of children‘s from various hotels, small industrial units in Mumbai apart
from that he liberated child labour from works of carpet in Bhadohi Dist.
of Uttar Pradesh during salvation on relief work he exposed violence and
atrocities carried out on them. He organized mass campaigning against
child labour and created awareness that engaging child below age of 14
years is crime and attract penalty of Rs. 20000/ with imprisonment of one
year.
Rajangam, District Secretary, Beedi Worker’s Union, Tirunelveli vs. State

141
 2006(6)SCALE218
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of TamilNadu 1 4 2
A letter / petition received from the district Beedi worker‘s,
Tirunelveli in the State of Tamilnadu was treated as an application under
Article 32 of our constitution and notice was ordered initially to three
factories referred to in the said letter and later to other Beedi
manufacturing units with in the state. There was a connected petition also
relating to the same subject matter with different ancillary relief‘s
covering employment of child labour and implementation of the Beedi an
cigar workers Act 1966.
Supreme court held that tobacco manufacturing was indeed
hazardous to health child labour in this trade should be prohibited so
employment of children should be stopped either immediately or in a
phased manner but should be done away with in three years by the states.
In view of the health hazards included in the manufacturing process,
every worker including children, if employed, should be insured for a
minimum amount of Rs. 50,000/- and the incidence should not be passed
on to the workman.
Sheela Barse vs. Union of India 1 4 3
The supreme court also stressed the Indian government to
implement the united nation‘s conventions etc, in Sheela Barse vs. Union
of India and also in Legal Aid Committee vs. Union of India 1 4 4 . It held
that international conventions relating to employment of children, if
ratified by the govt. of India, would be binding on India. Art 51 of our
constitution provides that India must honour its international obligations.
It is worthwhile to note the judgement of Supreme Court in M/s. P.M.
Patel and Sons vs. Union of India and Others 1 4 5 the court held that “the
homeworkers” in the beedi industry are employees with in the meaning
of Employers Provident Fund and Miscellaneous Provisions Act, 1952 and
working in their dwelling houses is interpreted to be the premises
notionally connected with factory. Based on the above, the above Act of

142
AIR 2016 SC 404 b
143
AIR 2016 SC 175
144
AIR 1989 SC 1278
145
AIR 1987 SC 447
 106

1952 is applicable to all home based workers.

Bachpan Bachao Andolan vs. Union of India & Others 1 4 6
A Public interest litigation under Article 32 of the constitution in
the wake of serious violations and abuse of children who are forcefully
detained in circuses, without any access to their families under extreme
inhuman conditions. There are sexual abuses on a daily basis, physical
abuse as well as emotional abuse.
The Juvenile Justice (Care and Protection of Children) Act 2000
was amended in 2006 by Act 33 of 2006. It is a special legislation for
children and defines children as ―a person upto the age of 18 years. The
Juvenile Justice Act is built upon a model which addresses both children
who need care and protection and those who are in a conflict of law. The
petitioner convened a meeting with the circus owners on 18th and
19 t h August, 2003 where a few owners agreed to make a declaration that
there shall be no further use of children in the circuses in India and a full
list of children employed by them will be submitted. The Court ordered to
implement the fundamental rights of children under Article 21A of the
Constitution, by the central government by issuing suitable notifications
prohibiting the employment of children in Circuses with in two months.
The court has given a detailed guidelines broughtout for the enforcement
of the Juvenile Justice (Care and Protection) Act, 2000.
Labour Cases To Be Settled In Open Court
As part of the 10-day special drive, officials of the Labour
Department under the supervision of Deputy Commissioner of Labour
(DCL) P.V.S. Subramanyam raided hotels, cinemas, restaurants, mechanic
sheds, shops and some manufacturing units and rescued children aged
below 15 years, engaged in work. Fifty-five child labourers, rescued
during the special raids from different shops and establishments, were
produced in the Open Court organised by the Labour Department in
vijaywada in August 2017. 1 4 7

146
(2011) 5 SCC 1-A
147
http://www.thehindu.com/news/cities/Vijayawada/55-child-labour-cases-settled-in-open-court/
article19589830.ece, 55 child labour cases settled in open court
 107

Poor Conviction Rate

An inquiry into the rescue and relief measures taken by the
Gurgaon police under Operation Muskaan 1 4 8 has revealed that cases
against violators, who employ minor children, are mostly not registered
by the police and thus escape scrutiny by the judiciary.
Data reveals that only 39 cases were registered against employers
in child labour cases in the last three years. Even among these, not a
single case has resulted in conviction in a court of law, as most victims
and their kin turn hostile and settle the cases outside the court.
Of the 39 cases registered in the last three years, 32 were settled by
imposition of fines ( ₹3.4lakh) and seven are still pending in the labour
court.
In most cases, the families don’t get support from either the police,
district administration, child welfare committee, district child protection
unit or voluntary organisations such as the Childline.
“Children who are already victims, feel more victimised by those
who rescue them and throw them in homes, where they wait for their
release. Children do not get sense any justice in the process and that is
why they are not interested in prosecution,” Anant Kumar Asthana, a
child rights lawyer in Delhi High Court, said.
Another major problem is that almost all cases of child labour are
lodged by a third party — an NGO or Child Welfare Committee or
Childline. A lot of blame is also assigned to the manner in which these
rescue operations are carried out.
Shakuntala Devi, Child Welfare Committee chairperson, said, “We
do not get any support from the child labour department or from the
police. No child labour cases were registered during Operation Muskaan
despite so many children being rescued.”
On the other hand, NGOs working with children allege that the
state is not serious about dealing with child labour cases.

148
https://www.hindustantimes.com/gurgaon/gurgaon-no-conviction-in-39-child-labour-cases-in-three-
years/story-Dnd3acq2B2Qg2HuKbuwsFK.html, accessed on 15 March 2018
 108

CHAPTER - VI
CONCLUSION AND SUGGESTIONS

Children constitute the nation’s valuable human resources. The

future well being of the nation depends on how its children grow and
develop. The great poet Milton said “Child Shows the man as morning
shows the day”. So it is the duty of the society to look after every child
with a view to assuring full development of its personality. Children are
the future custodians and torch bearers of the Society: they are the
messengers of our knowledge, cultural heritage, ideologies and
philosophies. Children are really future components in the form of great
teachers, scientists, judges, rulers, doctors, planners, engineers,
politicians on whom the entire society founded (rests). Unfortunately
millions of children are deprived of their childhood and right to education
and there by they are subjected to exploitation and abuse.
The age of the child has been differently defined in different laws.
There is no definite criteria or scientific parameters in defining the age of
the child. The Constitution of India under Art.24 defines ‘Child’ as any
one below the age of 14 409 years and who shall not be employed to work
in any factory or mine or engaged in any other hazardous employment.
Under Child Labour (Prohibition and Regulation) Act, 1986 ‘Child’
means a person who has not completed his 14 years of age. Article 21-A
of the Constitution states that the state shall provide free and compulsory
education to all children of the age of six to fourteen years in such
manner as the State may by law determine. Now, amended Article 45 of
the Constitution states that, the state shall endeavor to provide early
childhood care and education for all children until they complete the age
of six years. But according to Art.1 of the United Nations Convention on
the Rights of the Child 1989, a child means every human being below the
age of 18 years unless, under the law applicable to the child, majority is
attained earlier. Under Juvenile Justice (Care and Protection of Children)
Act, 2000 the age is fixed at 18 years. Thus, there is no uniform fixation
 109

of the age of a child.

Unfortunately, the children in India are subjected to various forms
of abuse. National Study on Child Abuse recorded its findings very
exhaustively on various forms of abuse of children. They are child labour,
physical abuse, emotional abuse, substantial abuse, Girl child neglect,
sexual abuse etc.
Socio-economic conditions prevailing in the society are strongly
responsible for the abuse of child in different forms. High literacy and
low literacy rate, equally contribute to the problem of child abuse. Among
the various forms of abuse of children it would be more pertinent and
relevant to focus on child labour. Child labour is a abuse and exploitation
of children and children pre-maturely leading an adult like life. They
receive low wages and work for long hours under conditions that are
likely to damage their health as well as physical and mental development.
According to a National Study on Abuse of Children, out of 12,447
children, 19.70% are found to be at work. Only 17% of working children
are paid for their work.4 Thus, child labour is being largely underpaid,
overworked and exploited. “Child Labour” is not a phenomenon or feature
peculiar to India. This has been there all over the world. The pathetic
conditions of a child forced to labour for his employer described by
Charles Dickens in his well known novel ‘ Nicholas Nickleby’. 5 The
concept of child labour is complex in its nature. It is very difficult to
define and give a valid definition of child labour. But International
bodies, like UNICEF, ILO, Research Groups, had made their best
endeavour to define the concept of child labour in a more logical manner
based on time and space factor.
Taking in to consideration of consequences of child lbaour, the ILO
has provided a comprehensive definition. “Child Labour includes
Children prematurely leading adult lives working long hours for low
wages under conditions damaging to their health and to their physical and
mental development , some times separate from their families, frequently
deprived of meaningful educational and training opportunities that could
open up for them a better future”.
 110

In this context, child work and child labour often used

synonymously, but have different connotations and understanding. All
work is not bad for children because, some light work properly structured
and phased is not child labour.7 This implies that work which does not
detract from other essential activities for children such as leisure, play
and education are not child labour. ‘Child labour’, therefore, is the work
which involves some degree of exploitation, namely, physical, mental,
economic and social and therefore implies the health and development of
children. Thus, child labour is a subset of child work which implies that
“all child labour can be termed as child work but all child work cannot be
child labour”. Thus, there is a gap between two concepts, although, both
appears to be one and the same, when it is investigated forensically
difference can be made out.
Children work in difficult forms/sectors, namely in the agrarian
sector, industrial sector and service sector. There are various factors
responsible for leading to child labour.
Child labour is a complex economic problem. In a country where
millions of children go to bed hungry, without having a single full meal
of the day, total elimination of child labour by mere legal recourse can
never be said to be a practical proposal. It may suppress the malaise but
cannot cure it. Samuel Johnson opined that, “Poverty is a great enemy to
human happiness; it certainly destroys liberty, and it makes some virtues
impracticable and others extremely difficult”. Children thus become
instrument to augment family income and are seen as a means to alleviate
poverty. Thus, there is vital link between poverty and child labour. Weak
and tardy enforcement of the child labour legislation and defective
legislation and polices also contribute more for the incidence of child
labour.
Thus, the phenomenon of child labour is multi-dimensional complex
problem and deep-rooted in the socio-economic fabric of society. So it
may not be wise to rely on one single approach to deal with it. So a
comprehensive integrated approach is required to tackle and combat the
problem of child labour.
 111

The international community has shown its concerns about the

problem of human rights in general and child labour in particular by
adopting a number of instruments. There were two Pre-United Nations
Instruments, namely the Geneva Declaration of 1924 which provides that ,
the child must be protected against every form of exploitation and the
U.N. Charter 1945 and Human Rights focussued on the dignity and worth
of the human being which includes children . In the United Nations
Instruments, the United Declaration of Human Rights,1948 under its
Article 25(2) says that “Motherhood and Childhood” are entitled to
special care and assistance. All children whether born in, or out of
wedlock shall enjoy the same social protection. The United Nations
Declaration of the Rights of the Child , 1959 was indeed a very important
event as regards the international recognition of right of the child.
International Covenant on Economic, Social and Cultural Rights, 1966
provides that children and young persons should be protected from
economic and social exploitation. The International Covenants on Civil
and Political Rights, 1966 8 under its Article 24 stated that, every
possible social and economic measures should be undertaken to prevent
forced labour and prostitution.
Child labour is a big social problem which needs to be solved on
urgent basis by the support of both, people (especially parents and
teachers) and government. Children are very little however they carry a
prosperous future of any developing country. So, they are the big
responsibility of all the adult citizens and should not be used in negative
ways. They should get proper chance to develop and grow within the
happy environment of family and school. They should not be limited by
the parents only to maintain the economical balance of the family and by
the businesses to get labour at low cost.
Child labour is a significant problem to the world and a very big
one to India especially. The prevalence of it is shown by the child work
participation rates, which are higher in Indian than in other developing
countries.
The major determinant of child labour is poverty. Even though
 112

children are paid less than adults, whatever income they earn is of benefit
to poor families. In addition to poverty, the lack of adequate and
accessible sources of credit forces poor parents to engage their children
in the harsher form of child labour -- bonded child labour. Some parents
also feel that a formal education is not beneficial, and that children learn
work skills through labour at a young age. These views are narrow and do
not take the long-term developmental benefits of education into account.
Another determinant is access to education. In some areas, education is
not affordable, or is found to be inadequate. With no other alternatives,
children spend their time working.
The Constitution of India clearly states that child labour is wrong
and that measures should be taken to end it. The government of India has
implemented the Child Labour Act in 1986 that outlaws child labour in
certain areas and sets the minimum age of employment at fourteen. This
Act falls short of making all child labour illegal, and fails to meet the
ILO guideline also. Though policies are in place that could potentially
reduce the incidence of child labour, enforcement is a problem. If child
labour is to be eradicated in India, the government and those responsible
for enforcement need to start doing their jobs. Policies can and will be
developed concerning child labour, but without enforcement they are all
useless.
The state of education in India also needs to be improved. High
illiteracy and dropout rates are reflective of the inadequacy of the
educational system. Poverty plays a role in the ineffectiveness of the
educational system. Dropout rates are high because children are forced to
work in order to support their families. The attitudes of the people also
contribute to the lack of enrollment -- parents feel that work develops
skills that can be used to earn an income, while education does not help in
this matter. Compulsory education may help in regard to these attitudes.
The examples of Sri Lanka and Kerala show that compulsory education
has worked in those areas. There are differences between Sri Lanka,
Kerala and the rest of India agreed. But surely something needs to be
done so that we are able to catch up to levels set by these places one
 113

being within India. We can learn an example from them and try to achieve
the goal, which is eradication of child labour, an instrument for which can
be compulsory education, which as a matter of fact is now a fundamental
right as incorporated in Art. 21-A of the constitution. Is there some
connection with the fact that the labour market for child labourers is
stronger in areas where there is presence of poverty and low levels of
education, prime examples being the states of Bihar, Chattisgarh and
Orissa or are there some other reasons which are responsible for child
labour? Former Union Labour Secretary Dr Lakshmidhar Mishra has come
down heavily on state governments lack of commitment to provide any
protective cover to millions of vulnerable children at their most crucial
stage of development. In a comprehensive and thought-provoking book,
'Child Labour in India', Mishra stresses that total prohibition of child
labour and provision of free, compulsory and universal primary education
should go together. 1 4 9
The release of children from the workplace and restoration to their
families, he says, must be backed by a process of immediate treatment for
those who may have been battered and traumatised by exposure to a harsh
work environment.
The ultimate objective of the whole process is the children's total
rehabilitation -- physical, economic and psychological. Mishra stresses
that nothing could be a more potent tool than education in the broadest
sense, transcending mere alphabetical literacy to include a variety of
skills which will equip children to face the future independently and with
confidence.
Recently, the central government implemented The District Primary
Education Program (DPEP), in an attempt to act on the recommendations
of the National Policy on Education. The program involves the
subsidizing of approved investments, by the Government of India. The
central government will provide a grant of 85% on expenditures by the
states. Since these measures have been implemented very recently, results
cannot be obtained and the effectiveness of the DPEP cannot be
149
see Mishra, 'Child Labour in India'
 114

commented on at this time.

These are some questions that need to be answered as soon as
possible for the welfare of all concerned. India is making progress in
terms of educational policy. Hopefully the future will show that this time
we have made progress towards universal education, and eradicating child
labour.
The large numbers of girls working as domestic labourers, and the
extreme exploitation and abuse that they endure requires that the
international community prioritize protection for child domestics as part
of strategies to end child labour.
Key steps that governments can take to protect the rights of child
domestics include the following:
 Establishing an unequivocal minimum age for employment and
explicitly prohibiting the employment of all children under the age of
eighteen in harmful or hazardous labour.  
 Amending national laws as necessary to ensure that domestic
workers receive the same rights as other workers, including a
minimum wage, time off, and limits on hours of work.
 Launching public information campaigns on the rights of domestic
workers and responsibilities of employers, with special emphasis on
the situation of child domestic workers and the potential hazards they
face.  
 Ensuring that all children enjoy the right to a free basic education
by eliminating formal school fees and other obstacles to education,
and by identifying and implementing strategies to reduce other costs
to attending school, such as transportation, school supplies, and
uniforms.  
 Creating a confidential toll-free hotline to receive reports of
workers’ rights violations, including abuses against child domestics.  
 Creating effective mechanisms for inspection, enforcement, and
monitoring of child labour, and promptly investigating any
complaints of abuses against child domestics.
 115

 Talking of India, the government of India should get down to

seriously solving the disparity that is present between the constitution
of the country which is the supreme law of the land and the Child
Labour (Prohibition and Regulation) Act of 1986 and the distinction
of processes and occupations should go and employment of children in
all sort of hazardous employments should be done away with.
 The government of India should also try and amend the constitution
of India so that employment in only hazardous employments should
not only be allowed but also the children should not be employed in
kind of employment before they attain the age of 18 years of age.
 Taking all-appropriate law enforcement measures against
perpetrators of physical and/or sexual violence against child
domestics.
 Ensuring care and support to children who escape domestic labour
and have suffered physical or sexual violence, including treatment of
sexually transmitted diseases.
Child labour cannot be eliminated by focusing on one determinant,
for example education, or by brute enforcement of child labour laws. The
government of India must ensure that the needs of the poor are filled
before attacking child labour. If poverty is addressed, the need for child
labour will automatically diminish. No matter how hard India tries, child
labour always will exist until the need for it is removed. The development
of India as a nation is being hampered by child labour. Children are
growing up illiterate because they have been working and not attending
school. A cycle of poverty is formed and the need for child labour is
reborn after every generation. India needs to address the situation by
tackling the underlying causes of child labour through governmental
policies and the enforcement of these policies. Only then will India and
the world shall succeed in the fight against child labour.
 116

BIBLIOGRAPHY

Abdalla, Ahmed (1988), “Child Labour in Egypt: Leather Tanning in Cairo”, in Bequele
and Boyden (eds.), Combating Child Labour, ILO, Geneva.
Acharji, N. (1986), “Child Labour in India”, Times of India, August 13.
Acharaya, Poromesh (1982), “Child Labour”, Seminar No. 275, July, pp. 18-21.
Ahmed, I. (1999), “Getting Rid of Child Laour”, Economic and Political Weekly, Vol.
XXXIV, No. 27, pp. 1815 – 1822
Aidoo, Akosua (1991), “The Girl Child: An Investment in the Future, United Nations
Children’s Fund, New York.
Aike, Chris and Kwaku Twumasi-Ankrah (1999), “Child Abuse and Child Labour
Across Culture: Implication for Research, prevention and Policy Implications,
Journal of Social Development in Africa, Vol. 14, No. 2, pp. 109– 118.
Alaraudanjoki, Esa (2001), “Psycho-Social Development of Child Labourers”, IDPAD
International Conference on Child Labour in South Asia, New Delhi, October 15-
17.
Allais, F. (2009), “Assessing the Gender Gap: Evidence from SIMPOC Surveys", IPEC,
International Labour Organization, Geneva.
Anandalakshmi, S. (1991), “The Female Child in a Family Setting”, The Indian Journal
of Social Work, January, pp. 37-47
Anker, R. and Melkas B. (1996), “Economic Incentives for Children and Families to
Eliminate or Reduce Child Labour”, International Labour Office, Geneva
Anker, Richard; Sandhya Barge; S. Rajagopal, M. P. Joseph (1998), Economics of Child
Labour in Hazardous Industries of India, Centre for Operations Research and
Training, Baroda.
Appleton, S. (1991), “Socio-economic Determinants of Education, Health and Fertility in
Africa”, D. Phil Thesis (Unpublished), Oxford.
Aptekar, L. (1988), Street Children of Cali, Duke University Press, Durham & London.
Arat, Z. F (2002), “Analyzing Child Labour as a Human Rights Issues: Its Causes,
Aggravating Policies and Alternative Proposals”, Human Rights Quarterly, 24, pp.
177-204.
Arles, J. P. (1971), “The Economic and Social Promotion of Schedule Caste and
Schedule Tribes”, International Labour Review, Vol. 103, No. 2.
 117

Arya, S. P. and Sonawat, R., (1993), “Emotional Problems of Child Labour – A Study of
Unorganized and Organized sector of Indore City”, Journal Of Indian
Psychological Review, Vol. 40, No. 11-12, p. 35-40.
Bachman, S. L (2000), “the Political Economy of Child Labour and its Impact on
International Business”, Business Economics, July.
Bajpai, Asha (2006), Child Rights in India: Law, Policy and Practice, Oxford University
Press, New Delhi.
Baland, J. M. and J. A. Robinson (2000), “Is Child Labour Inefficient”, Journal of
Political economy, Vol. 108(4), pp. 663-681.
Bardhan, P.K. and Udry, C. (1999), Development Microeconomics, Oxford University
Press, Oxford.
Barro, R. (1991), “Economic growth in a cross section of countries”, Quarterly Journal
of Economics, Vol. 106, 2 May, pp. 407-43.
Fyfe, A. (1989), Child Labour, Polity Press, Cambridge.
George, Ivy (1990), Child Labour and Child Work, Ashish Publishing House, New
Delhi.
Ghosh, Ashish and Helen R. Sekar (2002), Child Labour in the Knife Industry of
Rampur, NLI Research Series, No: 032/2002, V. V. Giri National Labour Institute,
Noida.
Ghosh, R. (2004), “Brick Kiln Workers: A Study of Migration, Labour process and
Employment”, NLI Research Studies Series No 57/2004, V.V. Giri National
Labour Institute, Noida, Uttar Pradesh.
Government of India (1933), “The Children (Pledging of Labour) Act, 1933”,
Government of India (1944), Report of the Labour Investigation Committee, Ministry of
Labour, New Delhi.
Government of India (1948), “The Factories Act, 1948”, The Gazette of India,
Extraordinary, Part II, Section 3, Sub-Section (i), pp. 145.
Government of India (1948a), “The Minimum Wages Act, 1948, The Gazette of India,
Extraordinary, Part V, pp. 224.
Government of India (1951), “The Plantation Labour Act, 1951”, The Gazette of India,
Extraordinary, Act 69 of 1951, pp. 530.

Government of India (1952), “The Mines Act, 1952”, The Gazette of India,
 118

Extraordinary, Part 2, Section 3, pp. 869.

Government of India (1958), “The Merchant Shipping Act, 1958”, The Gazette of India,
Extraordinary, Part 2, section 3(ii), pp. 2829
Government of India (1960), “The Central Children Act, 1960”, The Gazette of India,
Delhi Gazette, Act No. 60 of 1960, 26th December.
Government of India (1961), “The Motor Transport Workers Act, 1961”, The Gazette of
India, Extraordinary, Part 2, Section 3(ii), pp. 167.
Government of India (1987), “National Policy on Child Labour”, Ministry of Human
Resource Development, New Delhi.
Government of India (1998), Policy and Programme for the Rehabilitation of Working
Children and Manual for the Implementation of National Child Labour Projects,
Ministry of Labour, New Delhi.
Government of India (1993), “Research Study on Child Labour in Match Industries in
Sivakasi”, Research Centre Madurai Institute of Social Science, Madurai.
GOI (1998), Evaluation study on Impact of Non – Formal Education, Program
Evaluation Organization Planning Commission, Government of India, New Delhi.
Government of India (2000), “The Juvenile Justice Act, 2000”, The Gazette of India,
Ministry of Law, Justice and Company Affairs, Act No. 56 of 2000, 30th
December.
Government of India (2006), “Employment of Children In Domestic Servants and in
Dhabas banned from October”, Press Information Bureau, Government of India,
Tuesday, August, 01.
Harper, E. B. (1970), “A Comparative Analysis of Caste: The United Sates and India”, in
Milton Singer and Bernard S. Cohn (eds.), Structure and Change in Indian Society,
Aldino Publishing Company, Chicago.
Hirway, Indira (1991), Child Labour in Developing Economies: Basic Issues, Oxford
University Press, New Delhi.
Hossain, Mohemed Asfak (1987), “Exploitation of Women and Child Labour in Bidi
Industry in Samserganj”, Social Welfare, Vol. 34(1), April, pp. 9.
Human Rights Watch (2003), “Small Change: Bonded Child Labour in India’s Silk
Industry”, Human Rights Watch, January, Vol. XV, No. 2 (C).
Hussain Akmal, (1988), Strategic Issues in Pakistan's Economic Policy, Progressive
Publishers, Lahore.
 119

ILO (1973), “Minimum Age Convention, 1973”, Employment Research Paper,

International Labour Organization, Geneva.
ILO (1996b), “Child Labour: Refuting the Nimble Fingers Argument”, World of Work,
No. 17, September/October, International Labour Office, Geneva.
ILO/UNICEF (1997), ‘Strategies for Eliminating Child Labour: Prevention, Removal
and Rehabilitation’ (Synthesis Document), International Conference on Child
Labour. Oslo, Norway, October.
ILO (1998), “Child Labour: Targeting the Intolerable”, Conference Report VI(I),
International Labour Organization, Geneva.
ILO (2001), Reducing the Decent Work Deficit: A Global Challenge, 89th Session
Report 1(a). International Labour Conference, Geneva.
ILO (2002), “Every Child Counts: New Global Estimates on Child Labour”,
International Labour Organization, Geneva, April.
ISCA (2003), “Save the Children’s Position on: Children and Work”, International Save
the Children Alliance, London, U. K., March.
Iyengar, L. Vishwapriya (1986), “Where Children Labour and Fathers Despairs”, Indian
Express, 16 February.
Iyengar, L. V. (1987), “Pyre of Childhood: Child workers in the factories of Sivakasi in
Manju Gupta and Klaus Voll (eds), Young Hands at Work: Child Labour in India,
Atama Ram & sons, Delhi.
Jacoby, H. G. and Skoufias E. (1997), “Risk, Financial Markets, and Human Capital in a
Developing Country”, The Review of Economic Studies, Vol. 64(3), pp. 311-335.
Jacquemin, Mélanie (2006), “Can the language of rights get hold of the complex realities
of child domestic work? The case of young domestic workers in Abidjan, Ivory
Coast”, Childhood, Vol. 13, No. 3, pp. 389–406.
Jafarey, S. and Lahiri S. (1999), Will Trade Sanctions Reduce Child Labour?: Role of
Credit Markets, University of Essex, Mimeo.
Jafarey, Saqib & Lahiri Sajal (2005), “Food for education versus school quality: a
comparison of policy options to reduce child labour”. Canadian Journal of
Economics, Vol. 38, No. 2, pp. 394-419.
Jain, Devaki (1990), “Improving the Lot of Working Girl Child”, Kurushetra,
November, pp. 10-14.
Kothari, Smitu (1983), “There’s Blood on Those Matchsticks: Child Labour in
 120

Sivakasi”, Economic and Political Weekly, Vol. XVII, No. 27, July.
Kulshreshtha, J. C. (1978), Child Labour in India, Ashish Publishing House, New Delhi.
Kumar, P. Anoodharaja (2004), Female Child Labour, A. P. H. Publishing House, New
Delhi.
Kumar, Tapan (2000), Child Labour in Bulandshahar District of Uttar Pradesh, NLI
Research Studies Series, National Labour Institute, Noida.
Kumar, Vijaya A. and K. Prassanna (1999), “Child Labour in India: A Critique,
Employment News, Vol. 24(28), 9-15 October, pp. 1.
Kurosaki, Takashi, Seiro Ito, Nobuhiko, Kensuke Kubo and Yasuyuki Sawada (2006),
“Child Labour and School Enrollment in Rural India: Whose Education Matters?”,
The Developing Economies, Vol. 44, Issue 4, June.
Lahiri, Dedasree (2007), “Abuse of Child Domestic Workers in India: Crisis and
Challenges, Labour and Industrial Cases, July, Vol. 40, Part 3.
Lal, N. (1998), “Economics of Eliminating Child Labour in Gem Stone Industry”, in
Richard Anker, Sandhya Barge, S. Rajgopal and M. P. Joseph (eds.), Economics of
Child Labour in Hazardous Industry of India, Centre for Operation and Training
(CORT), Baroda, Hindustan Publishing Corporation, New Delhi.
Levison, Deborah, Richard Anker, Shahid Ashraf and Sandhya Barge (1998), “Is Child
Labour Really Necessary in India’s Carpet Industry”, in Richard Anker, Sandhya
Barge, S. Rajgopal, M. P. Joseph (eds.), Economics of Child Labour in Hazardous
Industry of India, Centre for Operation and Training (CORT), Baroda. Hindustan
Publishing Corporation, New Delhi.
Levy (1985), “Cropping Pattern, Mechanization, Child Labor, and Fertility Behavior in a
Farming Economy: Rural Egypt”, Economic Development and Cultural Change,
Vol. 33.
Lindert, P. (1983), “The Changing Economic Cost and Benefits of Having Children”, in
R. Bulatao et. al., (eds.), Determinants of Fertility in Developing Countries, Vol. 1,
Academic Press, New York.

Lloyd, C. B. (1993), “Fertility, Family Size and Structure – Consequences for Families
and Children”, Proceedings of a Population Council Seminar, New York, June 9 –
10.
Lloyd, Cynthia B. (eds.) (1994), “Investing in the Next Generation: The Implication of
 121

High Fertility at the Level of the Family”, Research Division Working Paper No.
63, Population Council, New York.
Mclntosh, James (1983), “Reproductive Behaviour in Peasant Societies: A Theoretical
and Empirical Analysis”, Review of Economic Studies, Vol. 50.
Mehta, Prayag (1983), “Mortgaged Child Labour of Vellore, Women Beedi Workers
Tale of Woe”, Mainstream, Vol. XII, No. 13, September.
Mehta, Nilima (2008), “Child Protection and Juvenile Justice System: for children in
need of care and protection”, Childline India Foundation, April.
Mellor, J. W. (1976), The New Economics of Growth: A Strategy for India and the
developing World, Cornell University Press, London.
Mendelievich, Elias (1979), Children at Work, International Labour Organization,
Geneva.
Menon, Geeta (1985), “Health Problems of Working Children: Some Observations”, in
Usha Naidu and Kamini Kapadia (eds.), Child Labour and Health Problems and
Perspective, Tata Institution of Social Sciences, Bombay.
MFAN (2009), “Eliminating Child Labour through Education: The Role of Bilateral
Donors”, Ministry of Foreign Affairs of the Netherlands, The Hague, November 5.
Nangia, Praveen (1987), Child Labour – Cause Effect Syndrome, Janak Publication, New
Delhi.
Nardinelli, Clark (1982), “Corporal Punishment and Children’s Wages in Nineteenth -
Century Britain”, Explorations in Economic History, vol. 19, no. 3, pp. 283-95.
Narayana, D. L. (1993), “Perspectives of the Girl Child Labour in the Third World”, in
Bhagwan P. Singh and Mahanty Shukla (eds.), Children at Work- Problems and
Policy Option, B. R. Publishing Corporation, New Delhi.
NCEUS (2006), Report on Social Security for Unorganized Workers, National
Commission for Enterprises in the unorganized sector, Government of India.
NCEUS (2007), Report on Conditions of Work and Promotion of Livelihoods in the
Unorganized Sector, National Commission for Enterprises in the Unorganized
Sector, Government of India.
Newman, S. (2000), Child Slavery in Modern Times, Franklin Watts Publication, New
York.
NIPCCD (1977), “Introduction of National Seminar on Employment of Children in
India”, National Institute of Public Co-operation and Child Development,
 122

November 25-28, New Delhi.

Ota, Masako (2001), “Poverty – Illiteracy Syndrome? The Causes of Child Labour in
Rural Andhra Pradesh, India”, IDPAD International Conference on Child Labour in
South Asia, New Delhi, October 15-17.
Pande, Rajendra (1993), Street Children of Kanpur: A Situational Analysis, National
Labour Institute, Noida.
Pande, Rekha (1980), “Child Labour in Beedi Industry in Nizamabad District of Andhra
Pradesh (A Report)”, Ministry of Labour, Government of India.
U.S. Department of State (1998), “Report on Human Rights Practice”, Bureau of
Democracy, Washington D.C.
World Vision (2009), “Fact Sheet: Child Labour”, World Vision, Christian Relief,
development and Advocacy Organization, Australia.
Yagi, T. (1921), “Report on Labour” Working Paper, Institute for the Study of Labour,
Japan.
Zebenay, Atnafu (1998), Child Labour in the Urban Informal Sector, Addis Ababa
University, Addis Ababa.
Websites
http://www.constitution.org/cons/india, Constitutional Provisions, cited on October 6,
2009.
http://www.legislation.nsw. gov.nu/acts.htm, cited on October 6, 2009.
http://pib.nic.in/release/rel_print_page1.asp, Ministry of Labour and Employment
(1999), Efforts to Eliminate Child Labour, cited on October 8, 2009.