Pappu Bawariya and Another v District Collector Civil Station and others; An Analysis

16th January, 2023 - 6:14 am Categories: labour Law 0 Comments

Introduction

Child Labour can be defined or explained as a practice where children as humans and their rights are exploited and they are forced to engage or be employed in any economically beneficial activity either part-time or full-time. Some of the general factors responsible for this illegal practice are lack of awareness among parents, poverty, social practice, addiction, and discrimination. Child Labour is a menace to the Indian society, especially to the lower middle class/ middle class society. The elders engage minor into various kinds of chores that does not require any age or ability as such. Such practices have a detrimental impact and act as a hindrance in the overall growth of a child.   Efforts have been made at national and international level to stop this practice. In the past the government of India has constituted committees like Gurupadaswamy Committee and National Commission for Protection of Child Rights that have recommended ways to tackle this issue. Some of the laws prohibiting and governing the aspects of child labour at present are;

• The Factories Act, 1948
• The Mines Act of 1952
• The Child Labour (Prohibition and Regulation) Act of 1986
• The Juvenile Justice (Care and Protection of Children) Act of 2015
• The Right of Children to Free and Compulsory Education Act of 2009

Section 2B of Child Labour (Prohibition and Regulation) Amendment Rules, 2017 speaks about a child helping his family without affection education. Recently, the High Court of Kerala by way of this order expressed its views w.r.t child labour in accordance with the present conditions of the society.

Facts

The facts of the case are as follows: A writ petition was filed before the High Court of Kerala on 20.12.2022. The petitioners prayed for the release of the minor children, “VIKASH AND VISHNU” aged 7 and 6 years respectively and pleaded for handing over the children into the petitioner’s custody for the utmost welfare of the children.

[Image Sources : Shutterstock]

The petitioners were natives of Rajasthan and had migrated to Delhi in search of livelihood. The poverty-stricken family in a bid to improve their condition travelled to Kerala for a few months every year to earn a living by selling pens, chains, bangles, and rings. The children namely “Vikas and Vishnu” assisted in selling these items on the streets. On 29.11.2022 they were nabbed by a Police officer (Respondent No.4) and the respondent alleged that they were being forced to do child labour. The children were produced before the Child Welfare Committee and were shifted to a shelter at Palluruthy, since then they did not get a chance to meet their parents and other elders of the family. The family was not allowed to interact with the children, and after an inquiry, it was suggested that the children be shifted to CWC, District South East, New Delhi For Rehabilitation.

Issue(S)

The main issue in this case was; Children whose parents are unable to meet the basic needs of living if found assisting their parents to earn a livelihood, would this amount to child labour?

Summary Of The Court Decision And Judgement

When the writ petition was first presented, it was submitted that the parents were not allowed to meet the children pursuant to this the court passed an order directing the respondents to allow the interaction of the children and parents. Later it was declared upon examination that the children “Vikas and Vishnu” would come under the category of children in need of care and protection as stipulated in Section 2(14)(i)(ii) of the Juvenile Justice (Care and Protection of Children) Act 2015 and the committee ordered the transfer of children to the CWC, South East, New Delhi. However, an interim order was passed restricting the transfer of children to any place outside Kerala.

Considering the petition and after perusing through the various statements and aspects of the same, the learned judge gave the order in favor of the petitioner and held that children cannot be separated from their families as this would hinder their holistic development. The learned judge also said that helping parents in selling pens and other small articles would not amount to child labour.

Analysis

The Indian society especially the lower-middle class and lower section of the society is plagued with the problem of child labour. According to data from Census 2011, the number of child laborers in India is 10.1 million (5.6 million boys and 4.5 million are girls). Today, 155 million children are estimated to be the victims of child labour globally. Earlier, the children were employed as familial labour and were expected to contribute to the household economy. After the Industrial Revolution, the affluent and wealthy factory owners always looked to employ young boys because they could be paid half of what an adult worker was paid. Presently, in the 21^st century, there has been a positive realization for the need to educate children before employing them anywhere. At present, the Governments worldwide are making constant efforts to eradicate the problem of child labour. Some of the important determinants of child labour percentage in a country or society are socio-economic factors, existing poverty, female Illiteracy, population, adult-wage rates, and education within the rural economy. The predicament of Indian children was brought out by Myron Weiner as he quoted “Less than half of India’s children between ages six and 14—82.2 million— are not in school. They stay at home to care for cattle, tend younger children, collect firewood, and work in the fields. They find employment in cottage industries, tea stalls, restaurants, or as household workers in middle-class homes. They become prostitutes or live as street children, begging or picking rags and bottles from trash for resale. Many are bonded labourers and working as agricultural labourers for local landowners.”

Presently, in India several acts are in place to restrict the employment of children before the age of 14. Some other acts like The Factories Act, 1948 and The Mines Act, 1952 ensures proper protection to the children working in factories from the various hazards. These acts also lay down various provisions for punishment for those exploiting children or taking any such actions that are in violation of the existing laws. The constitutional provisions also ensure proper development and protection of children through Article 21A which states that children between the age group of 6 to 14 have the right to free and compulsory education. Furthermore, the International Labour Organization a devoted organization toward promoting social justice and internationally recognized human and labour rights in one of its reports defined child labour and elaborated further that not all kinds of “work” can be called “child labour” depends on the child age, the type of work performed and hours of the work performed, the conditions under which it is performed and the objective pursued by the individual companies. Thus, the child labour law may vary from country to country as every country has different socio-economic condition. Considering this Order, it is necessary to talk about the problem of poverty in India. According to report of UN, 415 million people exited the problem of poverty and the incidence of poverty has dropped to 19.67% from 55.1%. However, the second largest democracy in this world has the highest number of poor people (228 million) people living a nomadic life who are unable to meet the basic necessities of living.

The learned judge correctly based its judgment on the various aspects covered in the above analysis. The judge said:

“I am at a loss to understand as to how the activity of the children in helping their parents in selling pens and other small articles would amount to child labour. No doubt, the children ought to be educated, rather than being allowed to loiter on the streets along with their parents. On interaction with the petitioners, they undertook not to let the children on to the streets for selling articles and to take measures for educating them. I wonder as to how the children can be provided proper education while their parents are leading a nomadic life.”

It said to be concluded that the Indian society is still riddled with the evil of poverty and there is no harm in helping and assisting the parents to earn some money that would help the family live a decent life. Even if the children are prevented from being involved in such chores this would not benefit them in any way as they won’t be able to attend school or even have enough resources to arrange necessary books and stationery to get basic education. To summarize the above analysis in a sentence; the court held that children merely helping parents in selling small items to improve the overall condition of the family won’t be labelled as ‘Child Labour’.

Concluding Remarks

The court’s decision exempting the activity of helping parents earn money to improve the family condition was correct. The problem of child labour is not just an economic problem alone. It is further coupled with a lot of socio-economic factors as well. Nevertheless, the elimination of child labour requires a two-pronged approach where the government plays its part in policy making and the private institutions ensure sufficient contribution towards “Corporate Social Responsibility” measures. However, in order for these problems to be mitigated, it is pertinent that the issues such as poverty shall be controlled. Thus, a few measures like mass awareness should be adopted in Rural and other underdeveloped areas to educate the masses about the negative impact of child labour and the punishment for practicing the same. Secondly the children brought in custody of the authorities for counseling should be educated while they are away from their parents and subsequently the authorities should ensure that when there custody is given back to their parents they have enough means to ensure proper education and if not the government authorities should make firm arrangements for the same. It is high time that the existing regulations are amended and stringent laws are introduced and ethical investments are made, similarly disinvestments in particular sectors that promote exploitation of children would send a firm message about the stand of the public towards this evil and it will directly impact the driving factors of this problem. Such measures if adopted and executed properly would surely eradicate this problem that has been prevalent since ages.

Court Order – Pappu Bawariya and Another v District Collector Civil Station and others

Author: Harsh Shekhar, 3^rd Year, BBA-LLB Student at Bharati Vidyapeeth, New Law College,  in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

Reference

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5. Sharma, M. (2021). CHILD LABOUR IN INDIA | Legal Readings | Blogs |. Retrieved 11 January 2023, from https://legalreadings.com/child-labour/

6. Aggarwal, B. (2022). Poverty in India fell by 415 million in 15 yrs; still has maximum poor: UN. Retrieved 11 January 2023, from https://www.business-standard.com/article/economy-policy/poverty-in-india-fell-by-415-million-in-15-yrs-still-has-maximum-poor-un-122101700931_1.html