By Noor UL Shahbaz
The history of political thought points to a persistent belief among men that states ought to guarantee to individuals the enjoyment of a certain number of basic human rights which constitute the essential conditions of “the good life”. Rights are those conditions of social life without which man cannot be at his best or give of his best, what is needful to the adequate development and expression of his personal life. Looked at negatively, rights are those opportunities the absence of which deprives man of something essential. A man without rights, absolutely dependant on the daily caprice of a superior authority, is a slave. All doctrines of freedom, therefore, assume the existence of rights and Prof. Laski has correctly said that, “every State is known by the Rights that it maintains”. Hobbouse puts that rights are, “what we may expect from others, and others from us, and all genuine rights are conditions of social welfare.” Life, according to Aristotle is not merely living but living well. If good life is the aim of man’s life, then, its pursuit and achievement involves the fulfilment of certain conditions. It implies that every individual should be conscious of his own good and develop his powers of action to realize it. Secondly, he must be conscious of the good of others and help in creating conditions which lead to the development of their powers of action. Consciousness of this fact, namely, that individual good can be realized in common with the good of others, is the essence of rights.
The title of this article depicts the importance of child in our lives. The Universal Declaration of Human Rights adopted way back in 1948, has proclaimed that childhood is entitled to special care and assistance. It was only during the 20th century that the concept of children’s rights emerged universally. Rights perspective is embodied in the United Nations Convention on the Rights of Child in 1989, which is a landmark in International human rights legislation. Children being the most vulnerable section of the society need care, protection and affection for their survival and all round development. In this context, the question of children’s right to health and right against exploitation requires utmost attention in the new millennium as children are the future of the world. The health is an essential condition for the attainment of state of complete physical, mental and social wellbeing and, therefore is a fundamental right of every human being without distinction of any kind. The United Nations Convention on the Rights of Child, 1989 held at New York proclaimed 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 27 states that, “The state parties in case of need shall provide material assistance and sport programmes, particularly with regard to nutrition, clothing and housing.” Article 32 mandates that, “the state parties to recognize the right of the child to be protective 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.” Article 12 Respect of Child’s views, “The child who is capable of forming his or her own views has the right to express their views freely in all matters affecting the child and it shall be given due weight in accordance with the age and maturity of the child.” Article 28 and 29 Every Child has following educational rights (i) for development of respect for human rights and fundamental freedoms; (ii) for development of respect for the child’s parents, his or her own cultural identity, languages and values; (iii) for preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (iv) for the development of respect for the natural environment. According to Article 1 of the UN Convention on the Rights of the Child, 1989, “a child means every human being below the age of eighteen years (18yrs) unless under the law applicable to the child, majority is attained earlier.” In India the age at which a person ceases to be a child varies in different laws (The word child has been used in various legislations as a term denoting relationship, as a term indicating capacity, and as a term of special protection in some laws.
The Constitution of India also recognizes the Government’s responsibility for promoting the health of entire nation, recognized how crucial citizen’s well being was to the functioning in India’s democracy. In addition to the guarantee of fundamental right to the life and personal liberty under Article 21, the Indian Constitution also secures to every person including children’s right against exploitation. Does Indian Law Prohibit Child Labour?
The question is of great nature and depth, if looked generally we can say that the general opinion is that child labour is prohibited. But when we go through the legal provisions it is found that the child labour is not prohibited and the law regarding age of a child related to child labour is ambiguous. This ambiguity raises the question that does the Indian law prohibit child labour. Article 24 of the constitution prohibits employment of children below the age of 14 years in mines, in factories and in other hazardous occupations. It means that it does not ban child labour everywhere. It is prohibited only in mines, factories and hazardous occupations. Hence in other areas, non-mining, non-industry, non-hazardous areas child labour can be engaged. Unfortunately, the constitution does not define the term “hazardous occupation”. So, ambiguity prevails in deciding ‘hazardous occupations’ to prohibit child labour. According, to one view it should be limited to only ‘physical hazard’ and therefore any employment, which is physically not hazardous, can be lawfully engaged by children below the age of 14 years, under regulated working conditions. This argument is defended by stating that the child labour is a harsh reality and poor children are compelled to work due to economic necessity. Accordingly the Child Labour (Prohibition and Regulation) Act has been passed in 1986. Part II of this Act prohibits the employment of children below 14 years of age in the occupations and processes specified in the Schedule of the Act, which are considered to be hazardous. Part III of the Act provides provisions for regulating the working conditions of children, in other occupation and processes, which are not specified in the schedule. In other words, child labour is prohibited in some areas and permitted in other areas. It may be submitted that, this position legalised the child labour in India. However, the term hazardous in article 24 has to be read in relation to the child and not in relation to an adult. What may not be hazardous to an adult may be hazardous to a child because of his tender age. In this context, it is argued that anything that affects the physical, mental, moral or spiritual growth of children is hazardous (Report of the Second National Commission on Labour (2002) pg. 1067). In other words any work which goes against interests of the child is a hazard. It may be mentioned that Indian Constitution aims at bringing out a synthesis between Fundamental rights and the Directive Principles of state policy, by giving to the former pride of place and to the latter a place of performance. Together, not individually, they form the core of the Constitution, together not individually; they constitute its true conscience . Although a citizen cannot enforce the Directive Principles contained in Part IV of the constitution, they are, however, fundamental in governance of the country. Article 21 which is a Fundamental Right to life makes it absolutely clear that life means more than physical survival and if children being to employment enjoy no more than bare physical survival, there would be a denial of the right to life as expansively interpreted by the court (Sheela Barse v. Secretary, Children Aid Society, Air 1987 SC 656). Therefore, any discussion on child labour which raises the question whether child labour below 14 years should be permitted or not is at the outset unconstitutional and a sin against the constitution itself. Further, the Child Labour (Prohibition and Regulation) Act, 1986 is really a confession that the government does not intend to wipe out the torture of child labour but will only introduce a benignant component in the malignant operation. Children are voiceless; they are neglected with impurity by those in power who will be held guilty by the future (Krishna Iyer, “Jurisprudence of Juvenile Justice”, Shaping Future by Law: Children, Environment and Human Health (The Indian Law Institute, 1997) at p. 33 and 34).
Judicial Protection
The judiciary with its innovative and inspiring judgments has been bedrock of social justice. This concept of social justice would remain a myth if protection could not be provided to children- the future of any nation. With a collage of constitutional and legislative provisions the judiciary took up cudgels against the exploitation of children and whenever called upon gave full protection to the rights of children in consonance with the international commitments which India has made. However, the biggest challenge –child labour and its exploitation-remains. Taking into consideration the reality that the malaise cannot be eradicated the courts, especially the Supreme Court, have given ways for its regulation. Throwing light on the problem of child exploitation in Sathyavan Koytarakkara v. State (AIR 1997 Ker. 133), the High Court held, “Exploitation of children in any form which has the tendency to exploit them either physically, mentally or otherwise is objectionable. Any attempt in this direction should be put an end to achieve the goals enshrined by the Indian Constitution, makers, which are reflected in various provisions of the constitution, namely Article 21, 39, 41, 45 and 46.”
Reacting liberally to the problem of child labour in Peoples Union for Democratic Rights v. Union of India (AIR 1982 3 SCC 235), a liberal interpretation was given to the term “hazardous employment”. The Supreme Court held that the term was wide enough to include employment in construction work. It was held by the court that, “Construction work is clearly hazardous occupation and is absolutely essential that the employment of children under the age of 14 years must be prohibited in every type of construction work. This is a Constitutional prohibition which even if not followed up by appropriate legislation must operate proprio vigour.”
Following the Constitutional dictates, the Supreme Court once again in Labourers Working on Salal Hydro Project v. State of J&K (AIR 1983 2 SCC 181) held that the construction work is hazardous employment attracting Art.24 of the Constitution which states that no child below the age of 14 years can be allowed to be employed in it. The Court further held that, “We are aware that the problem of child labour is a difficult problem and it is purely on account of economic reasons that parents often want their children’s to be employed in order to be able to make two ends meet. The possibility of augmenting their meagre earnings through employment of children is very often the reason why parents do not send their children to schools and there are larger dropouts from schools. This is an economic problem and it cannot be solved merely by legislation so long as there is poverty and destitution in the country. It will be difficult to eradicate child labour. But even so an attempt has been made to reduce, if not eliminate, the incidence of child labour because it is absolutely essential that the child should be able to receive proper education with a view to equipping itself to become a useful member of the society and to play a constructive role in the socio-economic development of the country. We must concede that having regard to the prevailing socio-economic conditions it is not possible to prohibit child labour all together and, in fact, any such move may not be socially or economically acceptable to large masses of the people. That is why Art.24 limits the prohibition against the employment of child labour only to factories, mines or other hazardous employments. Clearly, construction work is a hazardous employment and no child below the age of 14 years can, therefore, be allowed to be employed in construction work by reason of the prohibition enacted in the Art.24 and this Constitutional prohibition must be enforced by the Central Government. The Central Govt. would do well to persuade workmen to send their children to a nearby school and arrange not only for the school fees be paid out but also provide fees for charges, books and other facilities such as transportation.” In M.C Mehta v. State of Tamil Nadu ((1992) 1 SCC 283) Ranganath Mishra, C.J. and M.H. Kania, J., observed, “We are of the view that employment of children within the match factories directly connected with the manufacturing process up to final production of matchsticks or fireworks should not at all be permitted. Article 39(f) of the Constitution provides that the State should direct its policy towards securing 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.” The Court further observed, “The spirit of the Constitution perhaps is that children should not be employed in factories as childhood is the formative period.” The Supreme Court in District Beedi workers’ Union v. State of Tamil Nadu (Writ Petition (Civil) No. 1262 of 1987) and R. Chandra Segaram v. State of Tamil Nadu (Writ Petition (Civil) No. 13064 of1988.) observed that, if a child is employed, should be insured for a minimum amount of Rs. 50,000 and the premium should be paid by the employer. In Bandhua Mukti Morcha V. Vnion of India (1997) 10 SCC 549) it was observed by the Court that, “The 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. Neglecting children means loss to society as a whole. If children are deprived of their childhood – socially, economically, physically and mentally – the nation gets deprived of the potential human resources for social progress, economic empowerment and peace and order, social stability and good citizenry”.
Conclusion
Right to life is the compendious expression for all those rights which the Courts must enforce because they are basic and inalienable human rights essential for the dignified enjoyment of life. It extends to that full range of conduct which the individual is free to pursue. Dignity of man is inviolable. It is the duty of the State to respect and protect the same. The above expressions in this research reveal that the child labour is a gross and basic violation of the basic right to life of the children and their dignity. The various social and legal scholars, also the apex courts of different countries regard child as the asset and future of the humankind. So, it can be said that such kind of asset is being vanished by some people for their individual interests. The conclusion of the above research is only that the violation of basic rights of the child is going on and it is the need of time to curb such kind of the problem.
Suggestions and Recommendations
The problem of Child labour is of a great magnitude, and to protect children from such kind of the problem should be the primary duty of the legislature. If we will go through the laws relating to the protection of Rights of Children the basic hurdle which comes in the way of the legislature is the Poverty. The Laws made by the legislature clearly envisages that child labour is not prohibited restrictly at all. There is a lenient approach of the legislature to prohibit it totally.
Firstly, the Legislature should make uniformity in laws on the age of the Child i-e, who is a child? I think that the age of 18years is the proper and appropriate age up to which there should be prohibition on all kinds of child labour, because we have to take into consideration the status of the child, as he is the future of our nation. So, he shall be given all the opportunities to unfold his personality and rise to its full stature, physical, mental, moral and spiritual.
Secondly, going through my research I found that various welfare enactments made by Parliament and the appropriate State Legislatures are enacted for the children, but are only on paper and illusory. They should be effectively implemented so that the right to life of children driven to labour should be protected and real shape to their basic right should be given.
Thirdly, the emergent step should be taken that; a direction needs to be given that the Government of India should convene a meeting of the Ministers concerned of the respective State Governments and their respective secretaries holding departments concerned to evolve the principles of policies for the progressive elimination of employment of children below the age of 18 years in all kinds of employments.
Lastly, the right-duty co-relation is also the important factor which the people should consider, we should not exploit the children i-e, we should not abuse the tender age of children and force them or exploit them on the economic necessity to enter avocations unsuited to their age or strength. The strict adherence of the duties prescribed by each state and society alone contributes for the sustainable development. In the modern context, many people think of their rights without acknowledging that they have a duty to protect the rights of others. This degradation of duty perspective has brought in a number of upheavals in the contemporary area. If people are duty conscious, automatically the country and its institutions will also follow the duties without any deviance. The sincere practice of duties and exercise of rights certainly will create a society or state that will be peaceful and problem free.
Noor UL Shahbaz, M.A, LL.M (GOLD MEDALIST),Lecturer and former acting Principal at Sopore Law College
