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Epgp(one year) 2009-10_lab_legal status report_ rajendra inani_30-sep-09

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  • 1. Legal Status Report Child Labour Case by Rajendra Inani EPGP 2009-10 Indian Institute of Management, Indore In partial fulfilment of the requirements for Legal Aspects of Business module of Executive Post Graduate Program in Management Instructors- Prof. Lalitha Sreenath & Prof. M R Sreenath Date: 30-Sep-2009
  • 2. Table of Contents Summary...........................................................................................................................3 Case History ......................................................................................................................3 Evolution of Constitutional and Legal Provisions ...............................................................7 The Loopholes and Failure causes................................................................................................8 The court’s decision............................................................................................................9 The International Perspectives on Child Labour................................................................15 Suggestions on Tackling the Child Labour Problem...........................................................16 Mahesh Chander (M.C.) Mehta – about the petitioner of this case...................................17 Some Good Quotes of Mr. M. C. Mehta.....................................................................................19 Reference.........................................................................................................................19 Page |2
  • 3. Summary “Diamonds are forever, but not the lives of Child Labours” – Child Labour is a major issue around the globe because of small kids aging from five to fourteen years work in hazardous sweatshops with poor conditions. These children are subjected to long hours with little earning and diseases. Many of the world known brands, whose manufacturing is outsourced in third world countries are produced using child labour. This is due to the fact that it is means of cheap cost of labour which business owners exploit and make profits. Mines in South Africa and India are notorious locations of various sweatshops that produce exquisite diamonds that are made by these child labours. This report refers to Child Labour Case, [1996 INDLAW SC 1746] between M.C. Mehta versus State of Tamil Nadu and Others. This case was heard by the honorable bench of Justices B. L. Hansaria, Kuldip Singh & S. B. Majumdar and decision was given on 10 Dec 1996. This case was filed as a Writ Petition (C) No. 465 of 1986 [Under Article 32 of the Constitution of India]. Advocate Mehta filed a PIL against the exploitation of child labour in Sivakasi (Tamil Nadu) match and fireworks factories, and about 200,000 children working in hazardous industries in Tamil Nadu were benefited. Advocate Mehta filed this petition referring to gross violation of fundamental rights of children guaranteed by Article 24, and sought court to use its power given under Article 32. Later on, this case was expanded to include child labour in the whole country. The Supreme Court passed a landmark judgment, directing all the States to identify children forced into labour and provide programs for their rehabilitation. Due to result of this judgment Child labour in hazardous industries has been banned. The judgment declared that the abolition of child labour is definitely a matter of great public concern and significance. Case History Sivakasi (Tamilnadu), a traditional centre for manufacturing of match and fireworks in India, where the manufacturing process of matches and fireworks was hazardous, giving rise to accidents including fatal cases. As on 31st December 1985, there were 221 registered match factories employing 27, 338 workmen of whom 2941 were children. During hearing of this case on 31st October 1990, Page |3
  • 4. keeping in view the provisions contained in Articles 39(f) and 45 of the Constitution, the court already given certain directions as to how the quality of life of children employed in the factories could be improved. The Court also felt the need of constituting a committee to oversee the directions given. The court took suo motu cognizance in this case on 14 August 1991, when news about an "unfortunate accident", in one of the Sivakasi cracker factories was published and 39 people were died as per details submitted by Tamilnadu government. The Court gave directions regarding the payment of compensation and constituted an advocates' committee to visit the area and make a comprehensive report relating to the various aspects of the matter. The Committee was consisted of Advocates Mr. R. K. Jain, Ms. Indira Jaising and Ms. K. C. Dua. Summary of above mentioned committee’s recommendation were as following. 1) State of Tamil Nadu should be directed to ensure that children are not employed in fireworks factories. 2) The children employed in the match factories for packing purposes must work in a separate premises for packing. 3) Employers should not be permitted to take work from the children for more than six hours a day. 4) Proper transport facilities should be provided by the employers and State Government for travailing of the children from their homes to their work places and back. 5) Facilities for recreation, socialisation and education should be provided either in the factory or close to the factory. 6) Employers should make arrangements for providing basic diets for the children and in case they fail to do so, the Government may be directed to provide for basic diet - one meal a day programme in the State of Tamil Nadu for school children may be extended to the child worker. 7) Piece-rate wages should be abolished and payment should be made on monthly basis. Wages should be commensurate to the work done by the children. 8) All the workers working in the industry, whether in registered factories or in unregistered factories, whether in cottage industry or on contract basis, should be brought under the Insurance Scheme. 9) Welfare Fund - For Sivakasi area, instead of present committee, a committee should be headed by a retired High Court Judge or a person of equal status with two social workers, who should be answerable either to this Hon'ble Court or to the High Court as may be directed by this Hon'ble Court. Employers should be directed to deposit Rs. 2 per month per worker towards Welfare Fund and the State should be directed to give the matching contribution. The employers of all the industries, whether it is registered or unregistered, whether it is cottage industry or on contract basis, to deposit Rs. 2 per month per worker. 10) A National Commission for children's welfare should be set up to prepare a scheme for child labour abolition in a phased manner. Such a Commission should be answerable to this Page |4
  • 5. Hon'ble Court directly and should report to this Hon'ble Court at periodical intervals about the progress. There were other reports submitted by various committees and individuals in the past as following. 1. An affidavit of the President of the All India Chamber of Match Industries, Sivakasi, which contained its reaction to the recommendations of the Committee. 2. A Committee constituted by the Labour Department by the Tamil Nadu Government vide its GOMs dated 19-3-1984, under the Chairmanship of Thiru N. Haribhaskar. 3. A work of Collector of Kamarajar District in October 1985, titled: "Integrated Project for the Betterment of Living Conditions of Women and Children Employed in Match Factories in Sivakasi area." 4. A report dealing with the causes and circumstances of the fire explosions taken place on 12th July 1991 at Dawn Amorces Fireworks Industries and it suggested remedial measures. 5. The report dated 30th March 1993 regarding elimination of child labour in the match and fireworks industries in Tamil Nadu. It was prepared by the representatives of the Department of Labour and Employment, Social Welfare and Education in collaboration with UNICEF and it talked about "A proposed strategy framework." 6. Labour Ministry set up a 16-member Committee by a resolution dated 6th February 1979 under the Chairmanship of Mr. M.S. Gurupadaswamy. This committee submitted its report on 29th December 1979. 7. The Labour Ministry surveyed the problem of child labour departmentally as a part of the observance of International Child Year Programme. The report dated 24th June 1981 mentions about the survey conducted in certain organised and unorganised sectors of industries. Some Hard Facts According to a 1996 report (quoting UNICEF and ILO as sources), the number of child laborers in India can be anywhere between 14 to 100 million children. Most of these children work in homes as domestic help. The rest are in industries such as bidi making, carpet weaving, football sewing, cracker making to name a few. • For the year 2000 the ILO projected the number of economically active children in India to be 13,157,000 out of which 5,992,000 were girls between the ages of ten to Page |5
  • 6. fourteen. (ILO, International Labor Office - Bureau of Statistics, Economically Active Population 1950-2010, STAT Working Paper, ILO 1997) • Based on the number of non-school going children and families living in destitution CACL estimated that there are between 70 and 80 million child labourers in India. (CACL, "An Alternative Report on the Status of Child Labour in India", submission to the UN CRC, September-October 1999) • In 1998 South Asian Coalition on Child Servitude (SACCS) estimated the number of child labourers in India to be 60 million while the ILO estimated it to be 44 million. (SACCS, Kailash Satyarthi, personal communication, 1998) (US Dept of State, Human Rights Report, 1998) • As many as 100 million boys and girls are believed to be working in homes and factories across India, many in conditions akin to slavery. (ECPAT, "Child Labor Ruling Provokes Scorn", Bulletin, Vol. 4/1, 1996-97) • Most of the 87 million children, not in school, do housework, work on family farms, work along side their parents as paid agricultural labour, work as domestic servants, or are employed in industries which utilize child labour such as hand-knotted carpets, gemstone polishing, brass and brass metal articles, glass and glassware, footwear, textiles, silk and fireworks. (EI, EI Barometer on Human and Trade Union Rights in the Education Sector, 1998) As per the judgment, the problem was not limited to the city of Sivakashi. But, it was already spread throughout the country. The judgment refers to multiple sources to support this interpretation as following. 1. A write-up in the Indian Express dated 25th October 1996 detailing situation in Bhavnagar, Gujarat. 2. A social anthropologist of United Nations Volunteers, Neera Burra, published a book under the title "Born to work : Child Labour in India" giving details and specific state wise data to support his claim. 3. Census of 1971 states that 10.7 million (4.66%) children working in India. 4. Census of 1981 quoted number of working children as 11.16 million. 5. National Sample survey 27th round (1972-73) estimated 16.3 million child labour. The 32nd round reported 16.25 million child labour by March’1978. This number further rose to 17.58 million in year 1985. Court observed that these estimations were not including child labour in unorganised sector and concluded this to be gross underestimation. 6. The court accepted Estimates from various non-governmental sources as to the actual number of working children ranging from 44 million to 100 million. Page |6
  • 7. Evolution of Constitutional and Legal Provisions 1. The International Labour Organisation, set up in 1919 under the League of Nations, suggested minimum age of work to be 12 years as international guidelines by which the employment of children could be regulated in industrial undertakings. ILO has been playing an important role in the process of gradual elimination of child labour and to protect the child from industrial exploitation. It has focussed five main issues: (a) Prohibition of child labour (b) Protecting child labour at work (c) Attacking the basic causes of child labour (d) Helping children to adapt to future work (e) Protecting the children of working parents Till now 18 conventions and 16 recommendations have been adopted by the ILO in the interest of working children all over the world. 2. A Royal Commission on Labour was established in 1929 to inquire into various matters relating to labour in India, who gave its final report in1931. The recommendations of the Commission were discussed in the Legislative Assembly and the Children (Pledging of Labour) Act, 1933 was passed, which may be said to be the first statutory enactment dealing with child labour. 3. 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 "67. 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 " 24. 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 " 109. No person under fifteen years of age shall be engaged or carried to sea to work in any capacity in any ship, except - (a) in a school ship, or training ship, in accordance with the prescribed conditions; or (b) in a ship in which all persons employed are members of one family; or (c) in a home-trade ship of less than two hundred tons gross; or (d) 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 " 45. (1) No child shall be employed in any mine, nor shall any child be allowed to be present in any pan of a mine which is below ground or in any open cast working in which any mining operation is being carried on. Page |7
  • 8. (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 presenting any part of a mine above ground where any operation connected with or incidental to any mining operation is being carried on." (v) Section 21 of Motor Transport Workers Act, 1961 " 21. No child shall be required or allowed to work in any capacity in any motor transport undertaking." (vi) Section 3 of Apprentices Act, 1961 " 3. Qualifications for being engaged as an apprentice. - A person shall not be qualified for being engaged as an apprentice to undergo apprenticeship training in any designated trade, unless he -(a) is not less than fourteen years of age, and (b) satisfies such standards of education and physical fitness as may be prescribed Provided that different standards may be prescribed in relation to apprenticeship training in different designated trades and for different categories of apprentices." (vii) Section 24 of Beedi and Cigar Workers (Conditions of Employment) Act, 1966 "24. Prohibition of employment of children. - No child shall be required or allowed to work in any industrial premises." (viii) Child Labour (Prohibition and Regulation) Act, 1986 (Act 61 of 1986) Legislature has strongly desired prohibition of child labour and Act 61 of 1986 is, ex facie, a bold step. The provisions of this Act, other than Part III, came into force at once and for Part III to come into force, a notification by the Central Government is visualised by Section 1(3), which notification covering all classes of establishments throughout the territory of India was issued on 26th May1993. Section 14 of the Act has provided for punishment up to 1 year (minimum being 3 months) or with fine up to Rs. 20, 000 (minimum being ten thousand) or with both, to one who employs or permits any child to work in contravention of provisions in Section 3. (ix) Shops and Commercial Establishment Acts under different nomenclatures in various States. The Loopholes and Failure causes As observed in the judgment and referred to some authors of various publication on the subject, there were a number of loopholes in the present Act which has made it a "completely ineffective instrument for the removal of children working in industry." Some of the loopholes identified were following. a) Children can continue to work if they are a part of family of labourers. Page |8
  • 9. b) The Act does not use the word "hazardous" anywhere, the implication of which is that the children may continue to work in those processes not involving chemicals. c) It is very impracticable and unrealistic to draw a distinction between hazardous and non-hazardous processes in a particular industry. The Act should provide a list the whole industry as banned for child labour, which would make the task of enforcement simpler and strategies of evasion more difficult. The judgement considered the following as cause of failure to stop child labour with reference to various reports and publications. 1. Poverty 2. Low wages of the adult 3. Unemployment 4. Absence of schemes for family allowance 5. Migration to urban areas 6. Large families 7. Children being cheaply available 8. Non-existence of provisions for compulsory education 9. Illiteracy and ignorance of parents 10. Traditional attitudes Of the aforesaid causes, it is found that the poverty is basic reason which compels parents of a child, despite their unwillingness, to get it employed. Otherwise, no parents, specially no mother, would like that a tender-aged child should toil in a factory in a difficulty condition, instead of it enjoying its childhood at home under the paternal gaze. The court’s decision The honorable judges referred the following Acts while delivering this judgment. • Merchant Shipping Act, 1958 • Motor Transport Workers Act, 1961 • Factories Act, 1948 • Apprentices Act, 1961 • Bidi And Cigar Workers (Conditions Of Employment) Act, 1966 • Child Labour (Prohibition And Regulation) Act, 1986 • Employment of Children Act, 1938 Page |9
  • 10. P a g e | 10
  • 11. The judgment referred to following Articles of the Constitution in details: "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. 39. (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; 39. (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. 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. 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. 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." Article 45 supported by Unni Krishnan [ 1993 Indlaw SC 1056], which was decided on 4-2-1993. The honourable judges observed that the problem would be taken care of to some extent by insisting on compulsory education of child involved. They believed that, if there is at all a blueprint for tackling the problem of child labour, it is education. Even if it were to be so, the child of a poor parent would not receive education, if per force it has to earn to make the family meet both the ends. Thus, in the view that till an alternative income is assured to the family, the question of abolition of child labour would really remain a will-o'-the-wisp. Following steps were directions in the judgment. 1. Child Labour Rehabilitation-cum-Welfare Fund : The offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs. 20, 000. An inspector, whose appointment is visualised by Section 17 to secure compliance with the provisions of the Act, should P a g e | 11
  • 12. do this job. The Inspectors appointed would see that for each child employed in violation of the provisions of the Act, the employer consumed pays Rs. 20, 000 which sum could be deposited in a fund to be known as Child Labour Rehabilitation-cum- Welfare Fund. The liability of the employer would not cease even if he would desire to disengage the child presently employed. It would perhaps be appropriate to have such a fund district wise or area wise. The fund so generated shall form corpus whose income shall be used only for the child consumed. The quantum could be the income earned on the corpus deposited qua the child. To generate greater income, fund can be deposited in high-yielding scheme of any nationalised bank or other public body. 2. State Government responsibilities: As the aforesaid income could not be enough to dissuade the parent/guardian to seek employment of the child, the court fixed responsibility of implementation by the appropriate Government, which expression has been defined in Section 2(i) of the Act to mean, in relation to establishment under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government. 3. The court asked 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, gets a job anywhere, in lieu of the child. However, the court was not asking the State at this stage to ensure alternative employment in every case covered by Article 24, as Article 41 speaks about right to work "within the limits of the economic capacity and development of the State". The very large number of child labour in the aforesaid occupations would require giving of job to very large number of adults, if it were to ask the appropriate Government to assure alternative employment in every case, which would strain the resources of the State, in case it would not have been able to secure job for an adult in a private sector establishment or, for that matter, in a public sector organisation. The court did not issue any direction to do so presently. Instead, it left the matter to be sorted out by the appropriate Government. In those cases where it would not be possible to provide job as abovementioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum of Rs. 5000 for each child employed in a factory or mine or in any other hazardous employment. 4. The court believed that the aforesaid would either see an adult (whose name would be suggested by the parent/guardian of the child concerned) getting a job in lieu of the child, or deposit of a sum of Rs. 25000 in the Child Lab our Rehabilitation-cum- P a g e | 12
  • 13. Welfare Fund. In case of getting employment for an adult, the parent/guardian shall have to withdraw his child from the job. Even if no employment would be provided, the parent/guardian shall have to see that his child is spared from the requirement to do the job, as an alternative source of income would have become available to him. The court ordered States concerned to do the following: (1) A survey would be made of the aforesaid type of child labour which would be completed within six months from today. (2) To start with, work could be taken up regarding those employments which have been mentioned in Article 24, which may be regarded as core sector, to determine which hazardous aspect of the employment would be taken as criterion. The most hazardous employment may rank first in priority, to be followed by comparatively less hazardous and so on. It may be mentioned here that the National Child Labour Policy as announced by the Government of India has already identified some industries for priority action and the industries identified are as below: The match industry in Sivakasi, Tamil Nadu The diamond polishing industry in Surat, Gujarat The precious stone polishing industry in Jaipur, Rajasthan The glass industry in Firozabad, Uttar Pradesh The brass-ware industry in Moradabad, Uttar Pradesh The handmade carpet industry in Mirzapur-Bhadohi, Uttar Pradesh The lock-making industry in Aligarh, Uttar Pradesh The slate industry in Markapur, Andhra PradeshThe slate industry in Mandsaur, Madhya Pradesh (3) The employment to be given as per our direction could be dovetailed to other assured employment. On this being done, it is apparent that our direction would not require generation of much additional employment. (4) The employment so given could as well be the industry where the child is employed, a public undertaking and would be manual in nature inasmuch as the child in question must be engaged in doing manual work. The undertaking chosen for employment shall be one which is nearest to the place of residence of the family. (5) In those cases where alternative employment would not be made available as aforesaid, the parent/guardian of the child concerned would be paid the income which would be earned on the corpus, which would be a sum of Rs. 25, 000 for each child, every month. The employment given or payment made would cease to be operative if the child would not be sent by the parent/guardian for education. (6) On discontinuation of the employment of the child, his education would be assured in suitable institution with a view to make him a 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. (7) A district could be the unit of collection so that the executive head of the district keeps a watchful eye on the work of the Inspectors. Further, in view of the magnitude of the task, a separate cell in the Labour Department of the appropriate Government would be created. Monitoring of the scheme would also be necessary and the Secretary of the Department could perhaps do this work. Overall monitoring by the Ministry of Labour, Government of India, would be beneficial and worthwhile(8) The Secretary to the Ministry of Labour, Government of India P a g e | 13
  • 14. would apprise this Court within one year from today about the compliance of aforesaid directions. If the petitioner would need any further or other order in the light of the compliance report, it would be open to him to do so. (9) We should also like to observe that on the directions given being carried out, penal provision contained in the aforenoted 1986 Act would be used where employment of child labour, prohibited by the Act, would be found. (10) Insofar as the non-hazardous jobs are concerned, the Inspector shall have to see that the working hours of the child are not more than four to six hours a day and it receives education at least for two hours each day. It would also be seen that the entire cost of education is hours by the employer. The honourable judges observed in the judgment that the problem of child labour persisting in India is really not because of dearth of resources, but lack of real zeal. It noticed that India is a significant exception to the global trend toward the removal of children from the labour force and the establishment of compulsory, universal primary school education, as many countries of Africa like Zambia, Ghana, lvory Coast, Libya, Zimbabwe, with income levels lower than India, have done better in these matters. The honourable judges ordered a copy of this judgment be sent to Chief Secretaries of all the State Governments and Union Territories, also to the Secretary, Ministry of Labour, Government of India for their information and doing the needful. P a g e | 14
  • 15. The International Perspectives on Child Labour The State of the World's Children 1997 reports on the progress made in recent years in protecting children and their rights, but it also condemns exploitative child labour as "one of the worst abuses of those rights" and confronts the myth that such exploitation no longer exists in the industrialized world. According to UNICEF, there is an estimated 158 million children aged 5 to 14 in child labour worldwide, excluding child domestic labour. The United Nations and the International Labor Organization consider child labour exploitative, with the UN stipulating, in article 32 of the Convention on the Rights of the Child that: ...States Parties recognize 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. Although globally there is an estimated 250 million children working. In the 1990s every country in the world except for Somalia and the United States became a signatory to the Convention on the Rights of the Child, or CRC. However according to the United Nations Foundation Somalia signed the convention in 2002, the delay of the signing was believed to been due to Somalia not having a government to sign the convention. The CRC provides the strongest, most consistent international legal language prohibiting illegal child labour; however it does not make child labour illegal. India’s international commitment: India has accepted the Convention on the Rights of the Child, which was concluded by the UN General Assembly on 20th November 1989. The Government of India deposited its instrument of accession to the above-mentioned conventions on 11th December 1992 with the United Nations' Secretary-General. Article 32 of this instrument of accession reads as below: 2. States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other 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 conditions of employment; (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article." P a g e | 15
  • 16. Suggestions on Tackling the Child Labour Problem In my view, the root cause of this problem lies in the issues of population and poverty. All the children pushed into child labour come from poor family and the family having more than two kids. While government may try to provide employment to parents of such kids to ensure education for the child, but there is no provision to ensure that such parents do not produce any more kids. Thus, resulting into incentive for such uneducated parents to have more kids and supply of government grants and employment. In most of such families, children are produced with intention to get more free hands for earning. The legal provision should have punishment for parents (jail term or so) for pushing child into employment before eligible age. In most of the western countries, child labour attracts serious punishment for parents. Instead, in India it is turning out to be incentive for producing child without responsibility. For example, in USA if parents are not taking good care of a child, the government takes away the child and provides it to suitable parents for adoption. Government scheme of providing jobs to family member of child labour is also not a deterrent for any family for pushing a child into jobs. At least there should be a condition that jobs to parents would be provided for only one or two child at the maximum. This situation can be understood from the fact that our country has many kids in the business of organized begging, domestic worker, restaurant industry and other low end job. Despite so many efforts from social and government agencies, supply of such child labour force does not seem to be declining. Also, there is no close loop tracking system in place to ensure that any rescued child from child labour is ensure to be attending a quality education. P a g e | 16
  • 17. Mahesh Chander (M.C.) Mehta – about the petitioner of this case The petitioner, Mr. M. C. Mehta is an attorney by profession with the Supreme Court of India. He is Founder & President of M.C. Mehta Environmental Foundation (MCMEF), New Delhi, an NGO creating public awareness about environmental and public interest law, with a focus on India and other south Asian countries. Mr. Mehta’s legal career has promoted environmental justice, protected the cultural heritage of the country, and secured fundamental human rights. His important cases include: Taj Mahal Case : In his first environmental law case, Mehta sought to protect the Taj Mahal, a cultural treasure of India and the world. The Taj faced serious threats from pollution from nearby industries. As a result of Mehta’s suit, the Supreme Court of India banned the use of coal by industries in the Taj Trapezium and ordered the planting of more than 200,000 trees surrounding the Taj Mahal. Ganges Pollution Case : Mr. Mehta began this case against two polluting industries, but the suit expanded to more than 100,000 industries and 300 towns in eight states of the country. The Supreme Court ordered the closing of industrial plants and the imposition of financial responsibility against polluters. Vechicular Pollution Case : Mr. Mehta filed suit to reduce air pollution in Delhi, at that time the fourth most polluted city in the world. The Supreme Court ordered recommendations from a three-member panel for the nationwide control of vehicular pollution. Relocation of Polluting Industries in Delhi : Hazardous industries operated in Delhi in violation of the Master Plan and Environmental laws, creating severe environmental problems and hazards to the people of Delhi. The Supreme Court, in this case, ordered the authorities concerned to identify industrial areas in the neighbouring states where hazardous industries can be relocated. Environmental Awareness and Education Case: Mr. Mehta brought a unique and historic case before the Supreme Court of India for including instruction of environmental awareness as a compulsory subject in schools throughout the country. Kamal Nath Case: Mr. Kamal Nath, the then-Minister of Environment, had changed the course of River Beas in the State of Himachal Pradesh to beautify his motel. Mehta filed suit to stop the action, and in its ruling, the Court changed the fate of environmental cases in India. Delhi Gas Leak Case: Ms Sriram Food and Fertilizers Ltd. operated in a heavily populated residential area in the heart of Delhi. Sensing the danger to the people living around that industry, Mr Mehta filed a case even before the gas leaked from the plant. One month after the filing of the case, deadly gas leaked from the same plant. After a number of appearing, the Court passed another trend setting judgment. The 102-year-old rule of Ryland’s v Fletcher was changed to the M C Mehta Principle of Strict and Absolute Liability. Hazardous and chemical industries were held strictly liable for any injuries from their activities. Aquaculture Case: Big industrial houses and multinationals started large-scale commercial prawn farming in the coastal states of Orissa, Andhra Pradesh and Tamil Nadu in an unplanned, unscientific and unscrupulous manner. Mehta filed a writ petition in the Supreme Court on behalf of S. Jagannathan, a Gandhian working for the weaker sections in the P a g e | 17
  • 18. coastal area of Tamil Nadu. An Authority has been constituted by the Central Government under Environment Protection Act 1986 to implement the principles of ‘Precautionary Principle’ and the ‘Polluter Pays Principle’ to assess the loss to ecology and recover the cost of eco-restoration and amount of compensation from the polluters. Coastal Areas Case: Despite Coastal Zone Regulation Notification of February 1991, none of the coastal states had formulated coastal zone management plans, with the result that haphazard construction and industrial activity were permitted anywhere along the coast leading to large scale damage to coastal ecology and loss of livelihood of fishermen and other indigenous communities dependent on marine resources. Mr. Mehta filed a writ petition on behalf of ICELA and the Supreme Court delivered a landmark judgment banning industrial/construction activity within 500 mtrs of the High Tide Line and setting a time limit for the coastal states to formulate coastal management plans. Dust Pollution Case: In a historic case, 212 stone crushers were shifted out of Delhi to a “Crushing Zone” in Haryana by an order of the Supreme Court on May 15th, 1992. The ruling eliminated daily emissions of more than 1500 tons of dust. Antop Hill Case: In the heart of Mumbai in the state of Maharashtra at Antop Hill, developers proposed a large-scale hazardous chemicals storage center, flouting all environmental considerations and safety of more than 1.5 million people living in and around that area. Mehta filed suit, and timely action the location of such facilities in the urban area. Gamma Chamber Case: Mehta successfully sued JN University to eliminate radiation exposure from the university’s Gamma Chamber. Delhi Sewage Treatment Plant Case: About 10 million people living in Delhi and millions of people living along the banks of river Yamuna were exposed to health hazards from water contamination due to the absence of sewage treatment plants in many areas of Delhi. The Supreme Court imposed deadlines on the Delhi Municipal Corporation for establishing treatment plants in sixteen localities. Ground Water Pollution Case: In Rajasthan at Bichhri, five small chemical industries, controlled by a single owner, operated without effluent treatment plants. Toxic effluents from the industries entered the ground water and contaminated the wells of fourteen villages. After six years of battle in the court, the Supreme Court delivered a Judgement in March 1996 directing the closure of the factories and attached the property of the recovering eco- restoration funds. Ground Water Depletion Case: Unsystematic and unscientific tapping of groundwater all over the country has led to an alarming fall in the levels of groundwater. Further, the indiscriminate discharge of toxic effluents contaminates ground water reserves, and pollution control Boards have failed to assess the extent and sources of contamination. In ruling in Mehta’s favor, Supreme Court invested Ground Water Boards with legal powers under the Environment Protection Act 1986 to issue licenses and take action against polluters even to the extent of closing down offending industries. Andhra Pradesh Polluting Industries Case: Indian Council For Enviro-Legal Action (ICELA) filed a case on behalf of villagers living in fourteen villages adjacent to Naka Vagu Stream – once a fresh water stream, but turned into a huge drain carrying industrial effluents from about 250 industries. The Supreme Court ordered compensation paid to the farmers who had lost their crops and cattle due to air and water pollution. The authorities, under the Order of the Court, are monitoring the establishment of pollution control devices by the polluting industries. P a g e | 18
  • 19. Some Good Quotes of Mr. M. C. Mehta Children of rich industrialists work as waiters abroad. That's good. If only we had dignity of labour in India If you have a law, obey and respect it; it is the duty of the executive to implement it. If it cannot be implemented, don't make fools of bonafide and law abiding citizens There is eco-illiteracy among our political parties, parliamentarians, bureaucracy, journalists, lawyers. This is a vicious cycle. There has to be education at the nursery level What will people do with computers in their homes, if they don't get water? We talk of a cultural revolution. What our country needs is an environment and resource revolution The country needs public transport, not cars. We are in debt because of petroleum products. The multinationals are draining our resources Reference 1. http://www.unicef.org/sowc97/report/ 2. http://en.wikipedia.org/wiki/Child_labour 3. http://www.dasherm.com/mehta/MehtaNomination.pdf 4. http://www.mcmef.org 5. http://en.wikipedia.org/wiki/Fundamental_Rightsl_Duties_of_India 6. http://www.boloji.com/society/0035.htm 7. http://ihscslnews.org/view_article.php?id=162 P a g e | 19

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