Topic: Bandhua Mukti Morcha vs Union Of India & Ors
Bandhua Mukti Morcha vs Union Of India & Ors
Bench: K Ramaswamy, S Saghirahmad - Date Of Judgment: 21/02/1997
O R D E R
This writ petitionunder Article 32 of theConstitution has been filedby way of public interest litigation seeking issue of a writof mandamus directing the Government totake steps to stop employment of children in Carpet Industry in the State of Utter Pradesh; to appoint a Committee to investigate into theirconditions ofemployment; and to issue such welfare directivesas are appropriate for total prohibition onemployment of childrenbelow 14 years and directing therespondent togive them facilitieslike education, health, sanitation, nutritious food,etc. The main contention of the petitioner-group isthat employment of the children in any industry or in a hazardous industry, is violative of Article 24 ofthe Constitution and derogatory to the mandates contained in Article 39(e) and (f) ofthe Constitution read with the Preamble. Pursuant to the filing of the writ petition, thisCourt appointedPrem Bhai and otherto visit factories manufacturing carpets and to submit their findings asto whether any number of children below the age of 14 years are working in the carpet industry etc. The Commissioner submitted his preliminary report.Subsequently, by Order dated August 1, 1991,this Court appointed a Committeeconsisting of ShriJ.P. Vergese, Ms. Gyansudha Mishra and Dr. K.P. Rajuto go around Mirzapur area and other places where carbets are being weaved to findout whether children are being exploited and to submit a comprehensive report. In furtherance thereof, a comprehensive report was submitted on November 18, 1991. The matter was heard and argumentswere concluded.The judgment was reserved by proceedings dated October 18, 1994. Since the judgment could not be delivered, matter was directed to be posted before a Bench consisting of S. Saghir Ahmad, J. We haveheard the counsel on both sides.
The primary contention by the petitioneron behalf of the children below the age of 14 years, is that the employment of children by various carpet weaverin Varanasi, Mirzapur, Jaunpur and Allahabadarea isviolative of Article
24. The reportof theCommittee discloses the enormity of the problem of exploitation to which the children are subjected. Children ranging between 5to 12 years having been kidnappedfrom the Village Chhichhori (Patna Block, District Palamau in Bihar) in January and February, 1984 in three batches and weretaken to village Bilwari in Mirzapur District of U.P. for beingengaged in carpet weaving centres. They are forced to work allthe day. Virtually, they are beingtreated as slaves and are subjected to physical torture revealed bythe presence of marks of violence on their person. TheCommission/Committee visited 42 villages and foundin all 884 looms engaging 42% of the work force with the children below theage of 14 years. The total number of children are 369; 95% of them are of tender age ranging between 6 to 11 years and most of them belong to the Scheduled Castes and Scheduled Tribes. Despite Pursuation, they couldnot be released andcontinue to languish under bondage. TheCommission visited several villages, personally contactedthe parents ofthe children in different places and foundthat the children were taken againsttheir wishes and are wrongfully forced to work as bonded labour in the carpet industries. They have furnished the list of carpet industrieswhereat the childrenwere found engaged.The question, therefore, is:whether the employment of the children below theage of14 years is violative of Article 24and whether theomission on thepart of the State toprovidewelfarefacilities and opportunities deprives them of the constitutional mandatescontained in Articles 45, 39(e) and (f), 21,14 etc.?
Child of today cannot develop tobe a responsible and productive member of tomorrow's society unless an environment which is conductive to his socialand physical healthis assured to him. Every nation, developed or developing, links its future with thestatus of the child. Childhood holdsthe potential and also sets thelimit to the future development of the society. Children arethe greatest gift to the humanity.Mankindhas best hold of itself. The parentsthemselves live for them. They embody the joy of life in them and in the innocence relieving the fatigue and drudgery in their struggle ofdaily life. Parents regain peace and happiness in the company of the children. The children signify eternal optimism in the human being and always providethe potential for human development. If the children are better equipped with a broader human output, the society will feel happywith them. Neglecting the children meansloss to the society asa whole. If children are deprived of theirchildhood - socially, economically, physically andmentally - thenationgets deprived of the potential human resources for social progress, economic empowerment and peace and order, thesocial stability and goods citizenry. The foundingfathersof the Constitution, therefore, have bestowed the importance of the role of the child in its best fordevelopment. Dr. Bhim Rao Ambedkar, was for a head of his time in his wisdom projected these rights in the DirectivePrinciples including the children as beneficiaries. Their deprivation has deleterious effect on the efficacy ofthe democracy and the rule of law. Article 39 (e) of the Constitution enjoins that the State shall direct its policytowards securing the health and strength of workers, men and women; and the children of tender age will not be abused; the citizens should not be forced by economic necessity toenter avocations unsuited to their age or strength. Article 39(f) enjoins that theStat shall direct its policy towards securing thatchildren are given opportunities and facilities todevelopin a healthy manner and in condition of freedom and dignity and the childhood and youth are protected against exploitation and againstmoral and material abandonment. Article 45 mandates that the State shall endeavour to provide free and compulsory education for all childrenuntil they complete the age of 14years. The period often years provided thereinhas lost its relevance since as on date, morethan 78 million outof 405million children, 78%of them are employed between the age of 5 to 14 years without any basic and elementaryeducation, healthy, access to nutrientfood and leisure. Article24 ofthe Constitution prohibits employment of the children infactories etc.so that no child below theage of 14 yearsshall be employed to work in any factory ormine or engaged in any other hazardous employment. Article 21mandates that no person shall be deprived of hislife orpersonal liberty exceptaccording to the "procedureestablished bylaw" which this Court has interpreted tomean "due process of law". The bare of the povertyis theroot of the child labour and they are being subjected to deprivation of their meaningful right to life, leisure, food,shelter, medical aid and education. Every child shall have without any discrimination on the ground of cast, birth, colour, sex, language, religion, social origin, property or birth alone, in the matter of right to health, well being, education and social protection.Article51-A enjoinsthat it shallbe theduty of every citizen to develop scientific temper, humanismand the spirit of inquiryand tostrivetoward excellence in all sphere of individual andcollective activities so that the nation constantly rise to higherlevelsof endeavours and achievement. Unless facilities and opportunities are provided to the children, in particular handicapped by social, economic, physical or mental disabilities, the nation stands to lose the human resources and good citizen. Education eradicatesilliteracy ameans to economic empowerment and opportunity to life of culture. Article 26(1) of Universal Declarationof Human Rightsassuresthat everyone has right to education which shallbe free, at least at the elementary and fundamental stages. Elementary education shall be compulsory. Technical andprofessional education shallbe madeavailable and higher education shall equally be accessible to all on the basis of merit. Education enables development of human personality and strengthens the respect for human right and fundamental freedoms. It promotes understanding, tolerance and friendship among people. It is, therefore, the duty of the State to provide facilities and opportunities to the children drivento child labourto develop their personality as responsible citizens.
Due to poverty, children and youthare subjected to may visible and invisible sufferings and disabilities, in particular, health, intellectual and social degradation and deprivation. The Convention on the Rights of the Child which was ratified bythe Government of Indiaon November 20,1989 recognised therights of the child for full and harmonious development ofhis or her personality.Child should grow up in a family environment, in an atmosphere of happiness,love and understanding. Thechild should be fullyprepared to live an individual life in society. Article 3 providesthat in allactionsconcerning children whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be the primary consideration. Article 27(1) provides that the State parties recognise the right of every child toa standard of living adequate for the child's physical, mental, spiritual, moral and social development.Article28 provides thus: "1. State Parties recognise the
right of the child to education, and with a view to education, and with a view to achieving this right progressively andon thebasis of equal opportunity, they shall, in particular:
(a) Make primary education compulsoryand availablefree to all;
(b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of freeeducation andoffering financialassistance incase of needs;
(c) Make higher education accessibleto allon thebasis of capacityby every appropriate means;
(d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of drop-out rates.
2.StatesPartiesshall take all appropriate measures to ensure that school disciplineis administered ina manner consistent with the child's human dignityand in conformity with the present Convention.
3.State Parties shall promote and encourage international co- operationin matter relating to education, in particular with a view to contributingto the elimination of ignorance and illiteracythroughout the world and facilitating access to scientific and technical knowledge and modern teaching methods in this regard. Particularaccount shall be taken of the needs of developing countries." Article 31(1) recognises the rightof the child torest and leisure, to engage in play and recreational activities appropriate tothe age of the childand to participate freely in cultural life and the arts. Article 32() which is material for the purpose of this case reads as under: "
1. States Parties recognize the right of the child to be protected from economic exploitationand from performingany work that is likely tobe hazardous or to interfere with the child's education, or to beharmfulto the child's health or physical, mental,spiritual, moral orsocial development.
2. States Parties shall take legislative, administrative, social and educational measure to ensure the implementation of the present article. To this end, and having regard tothe relevant provisions ofother international instruments. States Parties shall in particular. (a) Provide for a minimum age or minimum ages for admission to employment; (b) Provide for appropriate regulation of the hours and conditionsof employment;
(c) Provide for appropriate penaltiesor other sanctions to ensure theeffective enforcement of the present article."
Article 36 statesthat State parties hall protect the child against all otherforms of exploitation prejudicial to any aspects of the child's welfare. No doubt, the Government, while ratifying the Convention with a reservation of progressive implementation of the governance, reminded itself of the obligations undertaken thereunder, but they do not absolve the Statein its fundamental governance of the imperative of Directive Principles of the Constitution renderingsocio-economic justiceto the child and their empowerment,full growth of their personality - socially, educationally and culturally - with a right to leisureand opportunity for development of the spirit of reform,inquiry, humanism andscientific temper to improve excellence - individually and collectively. InMaharashtra State Board of Secondary and Higher Education vs. K.S. Gandhi [(1991) 2 SCC 716], right to education atthe secondary stagewas held to be a fundamental right. In J.P. Unnikrishnan vs. State of Andhra pradesh[(1993) 1 SCC642], a Constitution Bench hasheld education uptothe of14 years to bea fundamental right; right to health has been held to bea fundamental right; right to potable water has been heldto be a fundamental right; meaningful right to life has been held to be a fundamental right. Thechild is equally entitled to all these fundamental rights. It would, therefore,be incumbent upon the Stateto provide facilitiesand opportunity as enjoined under Article 39(e) and (f) ofthe Constitution and to prevent exploitation of their childhood dueto indigence and vagary. Asstatedearlier, theiremployment - either forcedor voluntary- is occasioned dueto economic necessity; exploitation of their childhood due to poverty, in particular,the poor and the deprived sections of the society, is detrimental to democracy and social stability, unity and integrity of the nation.
Various welfare enactments made by the Parliament and the appropriate State Legislatures are only teasing illusions anda promise ofunreality unless they are effectively implemented and make the right to like to the child driven to labour a reality, meaningful and happy. Article24 of the Constitution prohibits employment of the child below theage of 14 yearsin any factory or mine or in any other hazardous employment, but it is ahard reality that due to poverty child isdriven to be employedin a factory, mine or hazardous employment.Pragmatic, realistic and constructive stepsand actions arerequired to be taken to enable the child belongingto poor, weaker sections, Dalit and Tribes and minorities, enjoy the childhood and developits full blossomed personality - educationally, intellectually and culturally - with a spirit of inquiry, reformand enjoyment of leisure.The child labour, therefore, mustbe eradicated through well-planned, poverty- focussed allievation, development andimposition of trade actionsin employment may drive the children and massthem up into destitution and other mischievousenvironment, making them vagrant, hard criminals and social risketc. Therefore, while exploitation of the child must be progressively banned, other simultaneously alternatives to the child should be evolved includingproviding education, health care, nutrient food, shelter and other means of livelihood with self-respect and dignityof person. Immediate ban of childlabour would beboth unrealistic and counter-productive. Banof employment of children must begin from most hazardous andintolerable activities like slavery, bonded labour,trafficking, prostitution, pornography and dangerous formsof labour and the like.
Illiteracyhas many adverse effects ina democracy governed by rule of law. A free educated citizen could meaningfully exercise his political rights, discharge social responsibilities satisfactorily anddevelop spirit of tolerance and reform. Therefore, education is compulsory. Primaryeducation to the children, in particular, to the child from poor, weaker sections, Dalits and Tribes and minorities is mandatory. The basic education and employment- oriented vocational education should be imparted so as to empowerthe children with these segments of the society to retrieve them from poverty and, thus, develop basic abilities, skills and capabilities tolive meaningfullife for economic and social empowerment. Compulsory education, therefore, to these children is one of the principal means and primary duty of the State for stability of the democracy, social integration and to eliminate social tensions.
InM.C. Mehta vs.State of Tamil Nadu & Ors. [(1996) 6 SCC 756], this Courthas considered the constitutional perspectives of the abolitionof thechild labour and the child below 14years of age inthe notorious Sivakasi Match industries. Ithas mentioned in para 12 of thejudgment the number of total workers and the child workers employed in the respectiveindustries in the country. Ithas surveyed variousenactments which prohibit employment of the child; the details thereof are not necessaryto be reiterated. In para 27, it has notedthe causes forfailureto implement the constitutional mandate andhas given various directions in that behalf. We, therefore, reiterate the directions given therein as feasible inevitable. Werespectfully agreeing with them and reiterate the need fortheir speedy implementation.
Weare ofthe view that a direction needs to be given that the Government ofIndia would convene a meeting of the concerned Ministers ofthe respective State Governments and their PrincipalSecretaries holding concerned Department, to evolvethe principles ofpolicies for progressive elimination ofemployment of the children below the age of 14 years in all employments governed by the respective enactments mentioned in M.C. Mehta's case; to evolvesuch steps consistent with the scheme laiddown inM.C. Mehta's case, to provide (1) compulsory education toall children either by the industries itself or in co-ordination with it by theState Government to the children employed in the factories, mine or any other industry, organised or unorganised labour with such timings as is convenient to impartcompulsory educations, facilities for secondary, vocational profession and higher education; (2) apartfrom education, periodical health check-up; (3) nutrientfood etc.; (4) entrust the responsibilities for implementation of the principles. Periodical reports ofthe progress made in that behalf besubmitted to the Registry of this Court. The CentralGovernment is directed to convene the meeting within two months from the date of receipt of the order. After evolving the principles, a copy thereof is directed to be forwarded to the Registry of this Court. Shri Rakesh Dwivedi, learnedAdditional Advocate Generalof U.P.and Shri B.B. Singh, learned counsel for the State of Bihar,have taken notice on behalf of the States of Uttar Pradesh and Bihar respectively.They are directed to obtain the copy of the judgment and send the same to the respective States and to ensureimplementation of directions issued by thisCourt from time to time to implement the welfaremeasures envisaged inthe above orders until the principles andpolicies to beevolvedin the aforedirected conference and implemented throughout the country. Post this matter after three months.
The writ petitionis, accordingly, disposed of subject to the above directions.
SUPREME COURT OF INDIA
Date : 3.5.97
This Court's Order in W.P.(C) No.12125 of 1984 Bandhua Mukti Morcha v. Unionof India & Ors. (Dated : 21.2.1997)
1 (AFTER THELINE NO.6 TO BEADDED WITH NEW LINE) WRIT PETITION(C) NO. 11643 OF 1985