THE NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES

Case Commentaries on Four M.C Mehta cases in the Supreme Court of India

Made and Submitted by M.Vishnu Vth semester B.A.L.L.B (Hons.) Degree Course Roll no. 603

Acknowledgement
I extend my sincere thanks to Shanmughan Sir and Veena mam for giving me such important cases to work upon and also helping me throughout the time i was working on these cases. This assignment has really helped me understand the importance of articles like 48 (a) and 51 (a) and also has helped me realise the important part played by these cases in solving major issues regarding environmental pollution and also child labour. My gratitude also extends to each and every person who has helped me in one way or other to complete this project..

Index
1. Acknowledgement 2. Index 3. Introduction 4. Case No.1 MC Mehta v. Union of India and others.(Ganga river pollution case) 5. Case No. 2 MC Mehta v. Union of India and others.(Taj trapezium Case) 6. Case no. 3 MC Mehta v. Union of India and others. (Shriram foods and fertilizers case ) 7. Case no. 4 MC Mehta v. State of Tamil Nadu (Child labour case) 8. Bibliography

Introduction
Given the fact of poor and ill-conceived nature of law and ill-equipped administrative apparatus in wrestling with the twin challenges of meeting the demands of development and the concerns of environmental conservation and protection, attention naturally turns towards the third limb of the government, the judiciary, to examine its role in Environmental governance. Also, poverty, corruption and the problem of child labour has threatened India since the beginning. In 1983, a concerned young lawyer saw the rampant destruction and inequality plaguing his country and decided to take action. Using the Supreme Court of India as his primary weapon, M. C. Mehta has fought to preserve the rich culture and ecology of India. These battles were not easily won. Arrayed against M. C. Mehta were the entrenched interests of the country: people made rich through pollution, corruption and the sacrifice of others. Through M. C. Mehtas cases, the judiciary has often been the sole protector of Indias people and heritage. The Courts have taken this responsibility and used it as an opportunity to pioneer a pragmatic, compassionate and beneficial form of environmental jurisprudence.

Case No. 1
Title M.C. MEHTA V. UNION OF INDIA & OTHERS Coram VENKATARAMIAH, E.S. (J) Citation: 1988 AIR 1037 Facts
The petitioner, an active social worker, filed a petition in the Court complaining that neither the Government nor the people were giving adequate attention to stop the pollution of the river Ganga. It was, therefore, necessary to take steps for the purpose of protecting the cleanliness of the stream in the river Ganga which was in fact, the life sustainer of a large part of the northern India, and sought the issue of a writ/order/direction in the nature of mandamus to the respondents, other than respondents Nos. 1 and 7 to 9 restraining them from letting out the trade effluents into the river Ganga till such time they put necessary treatment plants for treating the trade effluents in order to arrest the pollution of water in the said river. The Court directed issue of notice under order 1 Rule 8 of the Code of Civil Procedure treating the case as a representative action by publishing the gist of the petition in the newspapers in circulation in northern India and calling upon industrialists and the municipal corporations and town municipal councils having jurisdiction over the areas through which the river Ganga flows to appear before the Court to show cause as to why direction should not be issued as prayed for by the petitioner asking them not to allow trade effluents and sewage into the river Ganga without appropriately treating them before discharging them into the river. Pursuant to the aforesaid notice a large number of industrialists and legal bodies entered appearance. Some filed counter affidavits explaining the steps taken by them for treating trade effluents before discharging them into the river.

The case against the tanneries at Jajmau, Kanpur, was first taken up by the Court for consideration. Forty three respondents admitted in their counter affidavits that the tanneries discharged their trade effluents into the sewage which led to the municipal sewage plant before they were thrown into the river Ganga.

The Court was informed that six of the tanneries had already set up and fourteen were engaged in construction of primary treatment plants, and some others pleaded

for time to do so. It was submitted on behalf of the respondents that it would not be possible for them to have secondary system for treating waste water in view of the enormous expenditure involved, which the tanneries would not be able to meet. Some of the tanneries neither appeared nor were represented by counsel in the Court.

Judgement
Issuing interim directions, the Court held that, i.) Article 48-A of the Constitution provides that the State shall endeavour to protect and improve the Environment and to safeguard the forests and wild life of the country. Article 51-A of the Constitution imposes as one of the fundamental duties on every citizen the duty to protect and improve the natural environment including forests, lakes, rivers and wild life and to have compassion for living creatures. Notwithstanding the comprehensive provisions contained in the Prevention and Control of Water Pollution Act of 1974, no effective steps appear to have been taken by the State Board so far to prevent the discharge of effluents of the Jajmau near Kanpur to the river Ganga. The fact that such effluents are being first discharged into the municipal sewerage does not absolve the tanneries from being proceeded against under the provisions of the law in force since ultimately the effluents reach the river Ganga from the sewerage system of the municipality. Not much has been done even under the Environmental Prevention Act of 1986 by the Central Government to stop the grave public nuisance caused by the tanneries at Jajmau, Kanpur.

ii.)

iii.) There is no doubt that the discharge of the trade effluents fromthe tanneries into the river Ganga has been causing considerable damage to the life of the people who use the water of the river and also to the aquatic life in the river. The effluents discharged from a tannery are 10 times noxious when compared with the domestic sewage which flows into the river from any urban area on its banks. The tanneries at Jajmau, Kanpur cannot be allowed to continue to carry on the industrial activity unless they take steps to establish primary treatment plant. No doubt it may not be possible for the tanneries to establish immediately the secondary system plant in view of the large expenses involved, but having regard to the adverse effect the effluents are having on the river water, the tanneries at Jajmau, Kanpur, should at least set up primary treatment plants, which is the minimum that the tanneries should do in the circumstances of the case. The financial capacity of the tanneries should be considered as irrelevant while requiring them to establish primary treatment plants. Just like an industry which cannot pay minimum wages to its workers cannot be allowed to exist, a tannery, which cannot set up a primary treatment plant, cannot be permitted to continue to be in existence for the adverse effect on the public at large which is likely to ensue by the discharging of the trade effluents from the tannery to the river Ganga would be immense and it will outweigh

any inconvenience that may be caused to the management and the labour employed by it on account of its closure. Moreover, the tanneries involved in this case are not taken by surprise. For several years they are being asked to take necessary steps to prevent the flow of untreated water from their factories into the river and some of them have already complied with the demand. iv.) In cases of this nature this Court may issue appropriate directions if it finds that the public nuisance or other wrongful act affecting or likely to affect public is being committed and the statutory authorities who are charged with the duty to prevent it are not taking adequate steps to rectify the grievance. For every breach of right there should be a remedy. It is unfortunate that a number of tanneries at Jajmau even though they are aware of these proceedings have not cared even to enter appearance in this Court to express their willingness to take appropriate steps to establish the pre- treatment plants. So far as they are concerned, they are directed to stop running of their tanneries and also not to let out trade effluents either directly or indirectly into the river Ganga without subjecting the trade effluents to a pretreatment process by setting up primary treatment plants as approved by the State Board with effect from October 1, 1987. Time granted till 31.3.1988 to other tanneries who are members of the Hindustan Chambers of Commerce and the other tanneries to establish primary treatment plants within six months. If any of these tanneries does not set up a primary treatment plant within 31.3.1988 such a tannery will stop business with effect from 1.4.1988. Such of those tanneries who have already put up primary treatment plants may continue running provided they keep the plants in sound working order. V.) The Central Government, the Uttar Pradesh Board, established under the provisions of the Prevention and Control of Water Pollution Act, 1974 and the District Magistrate, Kanpur were directed to enforce this order.

Case No.2
M.C Mehta v. Union of India and others
Judge: Kuldip Singh Citation: AIR 1997 SC 734 This writ Petition was filed by Shri M.C.Mehta, Advocate as a public interest litigation regarding pollution caused to the Taj Mahal in Agra. The sources of air pollution in Agra region were particularly iron foundries, Ferro-alloys industries, rubber processing, lime processing, engineering, chemical industries, brick kilns, refractory units and automobiles. The Petitioner also alleged that distant sources of pollution were the Mathura Refinery and Firozabad bangles and glass industries. It was also stated that the sulphur dioxide emitted by the Mathura Refinery and the industries located in Agra and Firozabad when combined with moisture in the atmosphere forms sulphuric acid and causes "acid rain" which has a corroding effect on the gleaming white marble. According to the petitioner, the white marble has become yellowish and at places it has blackened and hence he made request to the court that appropriate orders may be issued and immediate steps may be taken to prevent air pollution and save the Taj. The industrial and refinery emissions from brick kilns, vehicular traffic and generator sets were alleged primarily responsible for polluting the ambient air in and around Taj Trapezium Zone (TTZ) as identified by the Central Pollution Control Board. The Petitioner also referred the "Report on Environmental Impact of Mathura Refinery" (Varadharajan Committee) published by the Government of India in the year 1978. Subsequently, the reports of the Central Pollution Control Board under the title "Inventory and Assessment of Pollution Emission: In and Around Agra-Mathura Region (Abridged)" and the report of the National Environmental Engineering Research Institute (NEERI) entitled "Over-View Report" regarding status of air pollution around the Taj published in the year 1990 were also referred The NEERI in its report had observed that the industries in the TTZ (Districts of Agra Mathura, Firozabad and Bharatpur) were the main sources of air pollution in the area and suggested that the air polluting industries in the area be shifted outside the TTZ.

Judgement
The Court observed that the Taj, apart from being cultural heritage, is an industry by itself, More than two million tourists visit the Taj every year. It is a source of revenue for the country. The Court took into consideration the recommendations of the Varadharajan Committee. Amongst its several recommendations, it stated that studies should be undertaken by competent agencies to explore the possibility of protecting the Taj monuments by measures such as provision of a green belt. Through its final judgment in this case, the green belt became a reality.

However, it was only in its subsequent orders that the Court was able to draw up the exact framework i.e. in terms of area to qualify within the green belt. The court came to the conclusion that the emission generated by the coke/coal consuming industries are air pollutants and have damaging effect on the Taj and the people living in the Taj Trapezium. This has to be eliminated at any cost. It was further held that 292 industries located and operating in Agra must change over within time schedule to natural gas as industrial fuel or stop functioning with coal/coke and get relocated. The industries going to be shifted shall be given incentives according to Agra Master Plan and also the incentives normally extended to new industrial units. It was further ordered that all emporia and shops functioning within the Taj premises be closed. The government of India was directed to decide issue, pertaining to declaration of Agra as Heritage city within two months. The Pollution Control Boards [State and Central] were asked to monitor any further deterioration in the quality of air and report the same to the Court.

Case no.3
M.C. Mehta and Another vs. Union of India & Others Citation: 1987AIR 1086
Judges: BHAGWATI, P.N. (CJ) MISRA RANGNATH OZA, G.L. (J) DUTT, M.M. (J) SINGH, K.N. (J)

Facts
The case of M.C. Mehta v. Union of India originated in the aftermath of oleum gas leak from Shriram Food and Fertilisers Ltd. complex at Delhi. This gas leak occurred soon after the infamous Bhopal gas leak and created a lot of panic in Delhi. One person died in the incident and few were hospitalized. The case lays down the principle of absolute liability and the concept of deep pockets. The petitioners, in the writ petition filed under Art.32, sought a direction for closure of the various units of Shriram Foods & Fertilizers Industries on the ground that they were hazardous to the community. During the pendency of the petition, there was escape of oleum gas from one of the units of Shriram. The Delhi Legal Aid and Advice Board and the Delhi Bar Association filed applications for award of compensation to the persons who had suffered harm on account of escape of oleum gas.

A Bench of three Hon'ble Judges while permitting Shriram to restart its power plant and also other plants subject to certain conditions, referred the applications for compensation to a larger Bench of five Judges because issues of great constitutional importance were involved, namely: (1) What is the scope and ambit of the jurisdiction of the Supreme Court under Art. 32 since the applications for compensation are sought to be maintained under that Article; (2) Whether Art. 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people; and (3) What is the measure of liability of an enterprise which is engaged in an hazardous or inherently dangerous industry, if by reason of an accident occurring in such industry, persons

die or are injured. Does the rule in Rylands v. Fletcher, apply or is there any other principle on which the liability can be determined?

The Judgement
Disposing of the applications, the court held; 1. Article 32 does not merely confer power on this Court to issue direction, order or writ for enforcement of the fundamental rights but it also lays a constitutional obligation on this Court to protect the fundamental rights of the people and for that purpose this Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. It is in realisation of this constitutional obligation that this Court has, in the past, innovated new methods and strategies for the purpose of securing enforcement of the fundamental rights, particularly in the case of the poor and the disadvantaged who are denied their basic human rights and to whom freedom and liberty have no meaning. The power of the Court is not only injunctive in ambit, that is, preventing the infringement of fundamental right but it is also remedial in scope and provides relief against a breach of the fundamental right already committed. The power of the Court to grant such remedial relief may include the power to award compensation in appropriate cases. The infringement of the fundamental right must be gross and patent, that is incontrovertible and ex-facie glaring and either such infringement should be on a large scale affecting the fundamental rights of a large number of persons or it should appear unjust or unduly harsh or oppressing on account of their poverty or disability or socially or economically disadvantaged position to require the person or persons affected by such infringement to initiate and pursue action in the Civil Courts.

Ordinarily a petition under Art. 32 should not be used as a substitute for enforcement of the right to claim compensation for infringement of a fundamental right through the ordinary process of Civil Court. It is only in exceptional cases that compensation may be awarded in a petition under Art. 32. The applications for compensation in the instant writ petition are for enforcement of the fundamental right to life enshrined in Art.21 of the Constitution and while dealing with such applications the Court cannot adopt a hyper-technical approach which would defeat the ends of justice. The Court must look at the substance and not the form. Therefore, the instant applications for compensation are maintainable under Art. 32. 2. Whether Article 21 is available against Shriram which is owned by Delhi Cloth Mills Limited, a public company limited by shares and which is engaged in an industry vital to public interest and with potential to affect the life and health of the people. The issue of

availability of Art. 21 against a private corporation engaged in an activity which has potential to affect the life and health of the people was vehemently argued by counsel for the applicants and Shriram. It was emphatically contended by counsel for the applicants, that the American doctrine of State Action and the functional and control test enunciated by the Supreme Court in its earlier decisions, that Art. 21 is available. The contention was that as Shriram was carrying on an industry which was in accordance to the Government's own declared industrial policies, was ultimately intended to be carried out by itself, but instead of the Government immediately embarking on that industry, Shriram was permitted to carry it on under the active control and regulation of the Government. Since the Government intended to ultimately carry on this industry and the mode of carrying on the industry could vitally affect public interest, the control of the Government was linked to regulating that aspect of the functioning of the industry which could vitally affect public interest.

The applicants also contended on the regulatory mechanism provided under the Industries (Development and Regulation) Act, 1951 where industries are included in the schedule if they vitally affect public interest. It was pointed out that sizable aid in loans, land and other facilities granted by the Government to Shriram in carrying on the industry. And according to the American State Action doctrine, if supported, controlled or regulated by the State may get so entwined with governmental activity as to be termed State action and it would then be subject to the same constitutional restraints on the exercise of power as the State.

On the other hand, counsel for Shriram contended against expanding Art. 12 so as to bring within its ambit private corporations. He contended that control or regulation of a private corporation's functions by the State under general statutory law such as the Industries (Development and Regulation) Act 1951 is only in exercise of police power of regulation by the State. Such regulation does not convert the activity of the private corporation into that of the State. The activity remains that of the private corporation, the State in its police power only regulates the manner in which it is to be carried on. It was emphasized that the control which deems corporation, an agency of the State, must be of the type where the State controls the management policies of the Corporation whether by sizable representation on the board of management or by necessity of prior approval of the Government before any new policy of management is adopted, or by any other mechanism. It was also pointed out that the State action doctrine to the Indian situation means control and function test have been evolved in order to determine whether a particular authority is an instrumentality or agency of the State and hence 'other authority' within the meaning of Article 12. The learned counsel also pointed out that those rights which are specifically intended by the Constitution makers to be available against private parties are so provided in the under Art 17, Art 23 and Art 24. Therefore, to so expand Art 12 as to bring within its ambit even private corporations would be against the fundamental rights.

In order to deal with the contention weather the applicants fall under the ambit of Art 12, the Supreme Court referred to the existing case laws such as Rajasthan Electricity Board v. Mohan Lal, Ramanna. D. Shetty v. International Airport Authority, Som Prakash v. Union of India etc. 3. The rule in Rylands v. Fletcher (supra) laid down a principle of liability that if a person who brings on to his land and collects and keeps there anything likely to do harm and such thing escapes and does damage to another, he is liable to compensate for the damage caused. This rule applies only to non-natural user of the land and it does not apply to things naturally on the land or where the escape is due to an act of God and an act of a stranger or the default of the person injured or where the thing which escapes is present by the consent of the person injured or in certain cases where there is statutory authority. This rule evolved in the 19th century at a time when all these developments of science and technology had not taken place cannot afford any guidance in evolving any standard of liability consistent with the constitutional norms and the needs of the present day economy and social structure. In a modern industrial society with highly developed scientific knowledge and technology where hazardous or inherently dangerous industries are necessary to carry on as part of developmental programme, the Court need not feel inhibited by this rule merely because the new law does not recognise the rule of strict and absolute liability in case of an enterprise engaged in hazardous and dangerous activity. Other than answering these questions the court also included in the judgement the following points: 4. Where there is a violation of a fundamental or other legal right of a person or class of persons who by reason of poverty or disability or socially or economically disadvantaged position cannot approach a Court of law for justice, it would be open to any public-spirited individual or social action group to bring an action for vindication of the fundamental or other legal right of such individual or class of individuals and this can be done not only by filing regular writ petition under Art. 226 in the High Court and under Art. 32 in this Court, but also by addressing a letter to the Court. Even if a letter is addressed to an individual Judge of the Court, it should be entertained, provided of course it is by or on behalf of a person in custody or on behalf of a woman or a child or a class or deprived or disadvantaged persons. Letters addressed to individual Justices of this Court should not be rejected merely because they fail to conform to the preferred form of address nor should the Court adopt a rigid stance that no letters will be entertained unless they are supported by an affidavit. If the Court were to insist on an affidavit as a condition of entertaining the letters the entire object and purpose of epistolary jurisdiction would be frustrated because most of the poor and disadvantaged persons will then not be able to have easy access to the Court and even the social action groups will find it difficult to approach the Court. 5. The Delhi Legal Aid and Advice Board is directed to take up the cases of all those who claim to have suffered on account of oleum gas and to file actions on their behalf in the

appropriate Court for claiming compensation and the Delhi Administration is directed to provide necessary funds to the Board for the purpose.

Case no. 4
M.C. Mehta V. State of Tamil Nadu and Others Citation: 1997 SC 699 BENCH: KULDIP SINGH, B.L. HANSARIA, S.B. MAJMUDAR Facts and judgement
Our Constitution makers, wise and sagacious as they were, had known that 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 indicted. It is this need, which has found manifestation in Article 24, which is one of the two provisions in Part IV of our Constitution on the fundamental right against exploitation. Article 45 was also inserted in our paramount parchment casting a duty on the state to endeavour to provide free and compulsory education to children. Even after this, Child labour remains a big problem and has is intractable, even after about 50 years of us having become independent, despite various legislative enactments, prohibiting employment of a child in a number of occupations. In our country, Sivakasi was one taken as the worst offender in the matter of violating prohibition f employing child labour. As the situation thee had become intolerable, the public spirited lawyer, Shri MC Mehta, thought it necessary to invoke this court's power under Article 32, as after all the fundamental right of the children guaranteed by Article 24 was being grossly violated. He, therefore, filed this petition. It once came to be disposed of by an order of October 31, 1990 by nothing that in Sivakasi, as on December 31, 1985, there were 221 registered match factories employing 27,338 workmen of whom 2941 were children. The Court then noted that the manufacturing process of matches and fireworks (for the manufacture of which also Sivakasi is a traditional centre) is hazardous, giving rise to accidents including fatal cases. So, keeping in view the provisions contained in Article 39(f) and 45 of the Constitution, it gave 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. Subsequently, Suo Moto cognizance was taken in the present case itself when news about an "unfortunate accident", in one of the Sivakasi cracker factories was published. At the direction of the Court, Tamil Nadu Government filed a detailed counter stating, inter alia, that number of persons to die was 39. The Court gave certain directions regarding the payment of

compensation and thought that an advocates committee should visit the area and make a comprehensive report relating to the various aspects of the matter, as mentioned in the order of August 14, 1991. The committee submitted its report on 11.11.91 containing many recommendations, which included: (a) State of Tamil Nadu should be directed to ensure that children are not employed in fire work factories. (b) The children employed in the match factories for packing purposes must work in a separate premise for packing. (c) Employers should not be permitted to take work from the children for more than six hours a day. (d) Proper transport facilities should be provided by the employers and State Govt. for travelling of the children from their homes to their work places and back. (e) Facilities for recreation, socialisation and education should be provided either in the factory or close to the factory. (f) 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 of the State of Tamil Nadu for school children may be extended to the child worker. (g) 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. (h) 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. (i) 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. (j) 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 Hon'ble Court directly and should report to this Hon'ble Court at periodic intervals about the progress.

It was found by a report that Sivakasi has ceased to be the only centre employing child labour. The malady is no longer confined to that place. According to the 1971 census 4.66 per cent of the child population in India consisted of working children. In absolute numbers, the 1971 census put the figure at 10.7 million working children. On the basis of National Sample Survey 27th round (1972-73) the number of working children as on March, 1973 in the age group of 5-14 years' may be estimated at 16.3 million and based on the 32 round at 16.25 million on 1st March,1978 (14.68 million rural and 1.57 million urban). According to 1981 census the figure has gone to 11.16 million working children. As estimated by the Planning Commission on 1st March, 1983, there would be 15.70 million child labourers, (14.03 rural and 1.67 urban) in the age group of 1014 years' and 17.36 million in the age group of 5-14 years'. The National SampleSurvey Organisation estimates the number at 17.58 million in 1985. None of the official estimates included child workers in the unorganised sector, and therefore, are obviously gross under estimates. Estimates from various non-governmental sources as to the actual number working children range from 44 million to 100 million. The aforesaid profile shows that child labour by now is an all-India evil, though its acuteness differs from area to area. So, without a concerted effort, both of the Central government and various State governments, this ignominy would not get wiped out. We have, therefore, thought it fit to travel beyond the confines of Sivakasi to which place this petition initially related. In our view, it would be more appropriate to deal with the issue in wider spectrum and broader perspective taking it as a national problem and not appertaining to any one region of the country. So, we would address ourselves as to how we can, and are required to tackle the problem of child labour, solution of which is necessary to build a better India. To accomplish the aforesaid task, we have first to note the constitutional mandate and call on the subject, which are contained in the following articles: Article 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. Article 39: The State shall, in particular, direct its policy towards securing:(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 (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 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.

Article 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 the Constitution, for free and compulsory education for all children until they complete the age of fourteen years. Article 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. Of the aforesaid provisions, the one finding place in Article 24 has been a fundamental right ever since 28th January, 1950. Article 45 too has been raised to high pedestal by Unni Krishnan Case, which was decided on 4th February, 1993. Though other articles are part of directive principles, they are fundamental in the governance of our country and it is the duty of all the organs of the State to apply these principles. Judiciary, being also one of the three principal organs of the State, has to keep the same in mind when called upon to decide matters of great public importance. Abolition of child labour is definitely a matter of great public concern and significance. It would be apposite to apprise ourselves also about our commitment to world community. For the case at hand it would be enough to note that India has accepted the Convention on the Rights of the Child, which was concluded by the UN General Assembly on 20th November, 1989. This Convention affirms that children's right require special protection and it aims, not only to provide such protection, but also to ensure the continuous improvement in the situation of children all over the world, as well as their development and education in conditions of peace and security. Thus, the Convention not only protects the child's civil and political right, but also extends protection to child's economic, social, cultural and humanitarian rights. The Government of India deposited its instrument of accession to the above-mentioned convention on December 11, 1992 with the United Nation's Secretary-General. That instrument contains the following declaration "While fully subscribing to the objectives and purposes of the Convention, realising that certain of the rights of the child, namely those pertaining to the economic, social and cultural rights can only be progressively implemented in the developing countries, subject to the extent of available resources and within the framework of international co-operation; recognising that the child has to be protected from exploitation of all forms including economic exploitation; nothing that for several reasons children of different ages do work in India; having prescribed minimum age for employment in hazardous occupations and in certain other areas; having made regulatory provisions regarding hours and conditions of employment; and being aware that it is not practical immediately to prescribe minimum age for admission to each and every area of employment in India-the Government off India undertakes to take measures to progressively implement

the provisions of Article 32, particularly paragraph 2(a), in accordance with its national legislation and relevant international instruments to which it is a State Party."

Article 32 of which mention has been made in the instrument of accession reads as below: "1. States Parties 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. 1. 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 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."

A strong case exists to invoke an and of Article 41 of the Constitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising of standard of living of the population, and Articles 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, gets a job anywhere, in lieu of the child. This would also see the fulfilment of the wish contained in Article 41 after about half a century of its being in the paramount parchment, like primary education desired by Article 45, having been given the status of fundamental right by the decision in Unni Krishnan Case. We are, however, 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 we 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. We are not issuing any direction to do so presently. Instead, we leave the matter to be sorted out by the appropriate Government. In those cases where it would not be possible to provide job as above-mentioned, the appropriate Government would, as its contribution/grant, deposit in the aforesaid Fund a sum

of Rs.5,000/- for each child employed in a factory or mine or in any other hazardous employment.

The aforesaid would either see an adult (whose name would be suggested by the parent/guardian of the concerned child) getting a job in lieu of the child, or deposit of a sum of Rs.25,000/- in the Child Labour Rehabilitation-cum- Welfare Fund. In case of getting employment for an adult, 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. To give shape to the aforesaid directions, we require the concerned States 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 the 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 to identified are as below:a.) The match industry in Sivakasi, Tamil Nadu The diamond polishing industry in Surat, Gujarat. b.) The precious stone polishing industry in Jaipur, Rajasthan. c.) The glass industry in Firozabad, Uttar Pradesh. The brass-ware industry in MirzapurBhadohi, Uttar Pradesh. d.) The lock-making industry in Aligarh, Uttar Pradesh. e.) The state industry in Markapur, Andhra Pradesh. f.) The slate industry in Mandsaur, Madhya Pradesh.

The employment to be given as per our direction could be dovetailed to other assured employment. On this being done, it is apparent that the courts direction would not require generation of much additional employment. 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 understanding chosen for employment shall be one which is nearest to the place of residence of the family.

In those cases where alternative employment would not be made available as aforesaid, the parent/guardian of the concerned child would be paid the income which would be earned on the corpus, which would be a sum of Rs.85,000/- 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. On discontinuation of the employment of the child, his education would be assured in suitable institution with a view to make it 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. 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. The Secretary to the Ministry of Labour, Government of India would apprise this Court within one year of today about the compliance of aforesaid directions. If the petitioner would need any further of other order in the light of the compliance report, it would be open to him to do so.

Bibliography
1. www.lawyersclubindia.com 2. www.indiankanoon.org 3. All India Reporter