CHAPTER 14 eee LAW, CHILD WELFARE AND SOCIAL TRANSFORMATION See 144 Introduction Children are a human resource, invaluable but vulnerable, yet develop- ing with a potentiality to bloom with joy in an atmosphere of a caring society." They are great promises of tomorrow, the dawn of human- ity and buds of social development Legal policy towards them has undergone a sea change: from a position where children were treated asnon-entity and mere material objects to a position of human dignity where they are not only made free from exploitation and abuses but also enabled to develop their full potentiality with fair access to food, health and education. Social change towards better world for children to enjoy their right to be child is an inspiring objective beneath this policy. Growth of human rights perception regarding child spear- headed the movement for creating child friendly environment for his. * Bestow blessings on those Lite, nmocent loes > loomed on earth, Who have brought the message fey from heavenly garden—Rabindranath Tagore, cited in Swapan Kumar Sinha, (Child Labour in Caleuta: A Sociological Study (Naya Prokash, Calcutta 1991) at p40. © ber K. Ramaswamy, J. in Gaurno jain v. Union of India (1997) 8 SCC 114: AIR 1997 $C 3021°Children of the world are innocent, vulnerable and dependent. They are all {hous, active and full of hope. Ther life shoald be full of joy and peace, playing, ‘Rarning and growing, Their future should be shaped in harmony and cooperation, Their childhood should mature, as they broacen their perspectives and gain new ‘experience. Abandoning the children, excluding good foundation of Kife for them, i crime against humanity.”606 Lavo, Child Welfare and Social Transformation wholesome development. Human rights constitute the greatest bless- ings on the people of tender age as they have enormous potentiality of influencing the legal and social system to build a regime of protecting children and initiating social transformation. How best a society and its legal system treat children, the most vulnerable section of the society, with care, love and affection is the measure of humanism that it cherishes. A society that is caring for child exhibits the signs of development and maturity? As viewed by the Supreme Court in Bandhua Mukti Morcha, “A child of today can- not develop to be a responsible and productive member of tomorrow's society unless an environment which is conducive to his social and physical health is assured to him. Every nation, developed or develop- ing, links its future with the status of the child. Childhood holds the potential and also sets the limit to the future development of the soci- ety. Children are the greatest gift to the humanity. The urgency with which childcare policy shall be implemented is highlighted by Gabrial Mistral, the Nobel Laureate, who said, “We are guilty of many errors and faults, but our worst crime is abandoning the children, neglecting the foundation of life. Many of the things we need can wait. The child cannot; right now is the time his bones are being formed, his blood is being made and the senses are being developed. To him we cannot answer ‘tomorrow’. His name is ‘today’ ‘A humanist approach towards children is embedded in Indian cul- ture. Ancient Indian jurisprudence emphasised that there could be no real gift or sale of one’s child! This meant that any unjustified parting with the child is unlawful. Kautilya prescribed that it is the duty of the village elders to ensure proper development of the infants? The collectivism of joint family life provided shade of protection to them, 2 National Policy for the Welfare of Children stated, “The nation’s children are 4 supremely important asset, Their nurture and solictude are our responsibilty. Children’s programme should find a prominent part in xr national plans for the development of human resources, so that our children grov up to become robust ‘ltizens, physically fi, mentally alert and morally healthy, endowed with the land motivations needed by society. Equal opportunities for development to, all children during the period of grow'h should be our aim, for this would serve our larger purpose of reducing inequality and ensuring social justice. “The great poet Milton put it admirably when he said, “Child shows the man as morning shows the aay" 4 Bandhua Mukti Morcha v Union of nia, 1984)3SCC 161: AIR 1984SC 802. » Cited by justice Shivaraj Pati, “Children Supreme Asset ofthe Nation” AIR 2000 Journal 49. * Apastmba Dh S, 1.5419 “danam krayadhemascapatyasya na vidyate’ PV. Kane, History of Dharmashastra, Vol. IL at p. 639 “abalanam balo raja” 7 Book If Ch. 1 of Kautilya’s Arthashastra (Ed), Shama Shastry (9th Edn., Padam, Mysore 1988) at p. 47; Also see, Kanthi Rao, Bharatiya Nyayt Paddhati (Mysore 1985) at p.sl5,uy a Se) A A SS SS SS OU and the ultimate protection of the child and its property came from the king because of the precept that king is fountain of strength to the weak Son was regarded as means of spiritual salvation Family law on maintenance, property right, adoption’and marriage evinced desire in safeguarding the interests of children. ‘The western jurisprudence on rights of children started with par- ent’s claim of patria potestas on behalf of children that the world at large would not interfere with his custody and control of the child, with the industrial services from the child and with the chastity of female child." The interests protected in these contexts are primarily eco- nomic interests of the parents to have the exclusive service of the child rather than natural rights of children." Children were considered only as economic instruments for earning income for parents, Claiming obedience, respect, service and economic support from the child was within the legal capacity of the parent vis-a-vis the child. Obligation towards child's education, care and development was utmost a good gesture and munificence rather than a binding principle.» Employment of child labour in hazardous works came into vogue as a boon to both the employers and parents in Europe end North America in the back- ground of increasing unemployment owing to industrial revolution Legislatures responded to the problem by imposing restrictions on the evil practice. While the substantive due process approach of the ‘Apex Courtin America came in the way of eradication of child labout"* commerce clause was relied upon to uphold federal law restraining the practice of child labour. In India the common law approach is deviated from in the post-colonial pericd, as can be gathered from the Supreme Court’s observation in Rosy Jacob case that “Children are not mere chattels, nor are they playthings for their parents, Absolute rights of parents over the destinies and the lives of their children has in the ‘modern times changed social conditions, yielded to the considerations * Medhatithi on Maru “baladhanam rajna swadhanvatparipalaniyam’ also see, Sankhalikhita * Manu, V-137, ® Manu, 1-389, Mitakshara, 1-175 (aged pazents and infants to be maintained firs girls were to be given in marriage only after puberty (Manu, IX-94, Gautama, XVI-21). Henry Maine, Ancient Law (1930), at pp. 2(8-10; Julius Stone, The Province and Function of Law (Associated General Publications Py. Lid, Sydney) at pp. 522-23, In cases on assault and battery against the hid or injury to health arising from ‘pee imposed pregnancy the claims were based an loss of income and compantyof the shild rather than injury to the child, Flemington v.Sinithers, (1826) 2 C&P 292 anc Irwin ¥-Dearman, (1809) 11 East 23 Julius Stone, supra,n.11 at pp. 522-23, © Julius Stone supra. 11 at p. 524 “ Adkins v. Children’s Hospital (1923) 261 US 525: 67 L Ed 785.ww, Camu rreyure une Duca Lranssormation of their welfare as human beings so that they may grow up in a normal balanced manner to be useful members of the society.» The international community responded to the plightof children and developed an inspiring legal framework fot a comprehensive develop- ment of children all over the globe. The most important task of the legal systems was to make this tender section of the society free from the exploitative attitudes and actions of the elderly people, which had resulted in evils like child labour, sexual abuse and deceitful practices and reorient the whole legal system towards building the capacity of the potential human resources and make way for real social progress, The Charter of Rights of Children or the Geneva Declaration made by the ILO in 1924 in order to protect them against hazardous employ- ments was the first humanist effort to help their amelioration. While the Universal Declaration of Human Rights and the Covenants gave a serious thrust to human rights ideology benefitting all sections of the society including children, protection and welfare of children had to be built through special schemes enriched by noble vision. Through a series of Recommendations and Conventions, the ILO had sensi- tised the public policy and influenced national policies especially against child labour. The UN Declaration of Rights of Children, 1959 which indicated that “the child by reason of his physical and natural immaturity, needs special safeguards and care, including appropri- ate protection, before as well as after birth” got concretised into the UN Convention on Rights of the Child, 1989, The Convention rec- ‘ognises that the child for the full and harmonious development of his or her personality, should grow up in a family environment, in atmosphere of happiness, love and understanding. It considers that the child should be fully prepared t. life in society, and brought up in the spirit of the ideals proclaimed in the Charter of the United Nations, and in particular in the spirit of peace, dignity, tolerance, freedom, equality and solidarity. India became signatory to the Convention in 1992 by solemn undertaking to implement various provisions of the Convention. Four important sets of rights recognised for children in the Convention without any discrimination are: right to survival, right to protection, right to development and right to participation, Right to survival includes the right to life, the highest attainable standard of health, nutrition, and adequate standard of living (Articles 6 and 24). This obligates the State Parties to take appropriate measures to dimin- ish infant mortality, extend medical assistance, combat-diseases and malnutrition and promote physical and mental health. The policy of non-discrimination hits against disfavour to girl children, who, in fact, * Rosy Jacob v. Jacob A. Chakramakkal, (1973) 1SCC 840: AIR 1973 SC 2090.face the problem of “missing”. Since survival shall be with human dig- nity, right to a name, nationality and access to family environment of care is safeguarded by the Convention (Article 7). Right to protection includes freedom from all forms of exploitation, physical or mental violence, abuse (including sexual abuse), inhuman or degrading treat- ment and neglect. Prohibition on child labour, protection in case of separation from parents arising from adoption or other circumstance (including juvenile justice system) and special protection in situations of emetgency and armed conflicts come within the protection policy (Article 1). The right to development includes the right to education, support for childhood development and care, social security, and the right to leisure, recreation and cultural activities (Articles 27, 28 and 29). State's duty to provide compulsory primary education, to expand the opportunities of higher and vocational education and to mould the educational system into an instrument of personality development and preparation for responsible civic life has also been emphasised. The right to participation includes respect for the views of the child, freedom of expression, access to appropriate information, use of his or her own language, and freedom of thought, conscience and religion (Articles 12 to 18). From the perspective of child welfare, three factors need greater attention: first, all these rights are interconnected, and hence, their comprehensive protection is vital. Second, all the state parties, so ty, media and the voluntary organisations have specific and positive responsibilities towards child welfare. Third, the private actors like parents, adoptive parents, employers and other individuals who have interface with child shall act with responsibility and self-restraint, avoiding exploitation of children. The Government of India has rati- fied the Convention in 1992 and committed itself to review national and state legislations and bring them in line with the Convention and to activate the administration and society to implement the basic principles. This is in continuation of the constitutional commitment towards elimination of child labour and exploitations, protection of their health and promotion of their development through education and other assistance. As a result of all these factors, the legal system and the society as a whole shall respond seriously to the policy of child welfare both in minute details of legal norms and in their sincere implementation. Since cooperation of, or control over the private actors is very much required for the success of legal policy, bringing social change in this sphere through public action is a delicate task. The Oslo Conference ‘on Child Labour, 1997 observed, “Investment in the physical, men- tal, spiritual, moral, and social development of children is an ethical,social, and economic imperative for all societies. The Convention on the Rights of the Child constitutes the legal framework for the promo- tion and protection of the civil, political, economic, social and cultural rights of all children in an integrated manrter.” Child labour, inter- country adoption, sexual exploitation of children and compulsory pri- mary education are some of the most problematic areas in which law's efficacy is severely challenged. The present chapter lays focus on this subject. 14.2 Prohibition of child labour 14.2.1 Background In the pre-industrial agricultural society of India, children used to work as helpers and learners in the hereditarily determined family occupation under the benign supervision of elders. The workplace was extension of family atmosphere and the rature of work was simple due to simple technology. The advent of industrialisation and urbanisation resulted in exodus of rural population to urban centers. The child had to work as individual person and under an employer or without the supervision of his guardian. Exposed to hazards of chemicals, poi- sons and dangerous works; subjected to repetitive, monotonous and unpromising drudgery; and to widely stretched working hours with- out adequate leisure and adequate pay, the children were imperiled of their physical health and mental growth The industrial revolution started in the West deprived the sources of traditional employment and generated vast demands for manpower due to which child labour became outrageously manifest. Child labour is a social evil because of the hazards of the work, denial of opportunity for natural develop- ment, exploitation arising from low wages, loss of bargaining power on the part of adult workers due to availability of cheap child workers and loss of valuable opportunity for schooling towards better equip- ment with competence.” As the Committee on-Child Labour (1979, headed by Sri M.S. Gurupadaswamy) has concluded, “child labour is economically unsound, psychologically disastrous and physically as well as morally dangerous and harmful."* ™ Report of the Committee on Child Labour (Gurupadaswamy Committee, 1979) atp.8 23) ® As viewed by the Gurupadaswamy Committee, “Labour becomes an absolute evil in the case of child when he is required to work beyond his physical capacity, when hours of employment interfere with his education, recreation and rest, when the wages are not commensurate with the quan‘um of work done and when the ‘occupation he is engaged endangers his health and safety” at p.9 2.7), ™ hid at p. 10 2.10,142.2 Magnitude of the problem That the problem of child labour is serious is evident from the follow- 3g statistics. According to the 1991 census, the population of working children in India is 11.28 millions. Although as compared to 33.64 mil- lions in 1981 there is trend of decline, other research surveys estimate higher incidence of child labour.” Child labour in India accounts for 5.2 per cent of the total labour force. It is more rural than urban phenom- enon as 8o per cent of the working children are in rural areas engaged in agricultural and allied activities.» Only 6 per cent of child workers engage in activities prohibited under the Child Labour (Prohibition and Regulation) Act. For rest of the working child population, the law is not providing protection as either the work is not hazardous or the child works within family economic enterprise. However, stressful conditions of work and denial of opportunities to have formal educa- tion and joyous childhood are the features in all these spheres. The number of street children in major seven cities of India has crossed 5,00,000" Further, numerous orphaned children, children of prosti tutes, children of construction workers live in especially difficult cir- cumstances. 142.3 Causes Multitude of causes has engendered and perpetuated the problem of child labour. Chronic poverty has been the major cause for child labour. While half of India’s population lives below poverty line, the lower 50 per cent households own only 4 per cent of the land. In order to supplement the family income, which is many a time dwindled by ill health, death and drunkenness of elders, the children are compelled to shed sweat of the brow.” The vicious circle of poverty, ill health, illiteracy, exploitation and child labour continue the unfortunate sit- uation. Migration to urban places has also ended in the practice of child labour. The Oslo Conference on Child Labour (1997) said, “Child labour is both a consequence and a cause of poverty. Thus, strategies for poverty reduction and elimination need to address this problem. Use of child labour slows economic growth and social development, and it constitutes a severe violation of basic human rights.” Secondly, employers prefer children to adults, as they are active, enthusiastic According to ILO itis 232 millions in 1996, See, Asha Bajpai, Child Rights in India (Oxford University Press, New Dethi 2003) at p. 152. ® Lakshmidhar Mishra, Child Labour in Indie (Oxford University Press, New Delhi 2000) at p24 4 UNICEF Inia Background Paper, “The Right tobe a Child” (March 1994) at Pp ® Supra, m. 16at pp. 10-11ole Law, Child Welfare and Social Transformation ie eed Social Transformation and amenable to discipline or control in addition to being cheap. Some of the works like carpet making end other finger works can be bet- ter handled by children. Thirdly, education is regarded by the poorer classes as confined to upper caste strata of society, and hardly relevant for them. Number of children within the family also dissuades for education. Fourthly, child workers are not organised on lines of trade unions, which can militantly agitate for their cause. 14.2.4 International legal riorms As early as in 1924 the International Labour Organisation adopted a charters for children called Declaration of Geneva. It adopted 38 Conventions and 16 Recommendations relating to prescription of minimum age of workers in different types areas of works, regarding medical and health safety measures for child workers and on dura- tion of work The Convention 59 of the ILO prescribes that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment. India is party to this Convention. ‘The Human Rights development in international arena championed the cause of children’s rights against exploitative labour as a part of the scheme for ensuring child's development and right to human dignity. Article 32 of the UN Convention on Rights of the Child, 1989 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. 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: (@ provide for a minimum age or minimum ages for admis- sion to employment; : (®) provide for appropriate regulation of the hours and con- ditions of employment; and (© provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article. ® Paras Diwan and Piyushi Diwan, Children and Legal Protection (Deep & Deep: Publications, New Delhi 1994) at p. 202A rumen uy Lie nur ew In order to prohibit and eliminate worst forms of child labour the ILO adopted Convention 182 in 1999, which prohibited the practice amidst children up to the age of 18 years’. The worst forms of child labour comprises: (@ all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced and compulsory labour, including forced or com- pulsory recruitment of children for use in armed conflict; (#) the use, procuring or offering a child for prostitution for the production of pornography or for pornographic performances; (©) the use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; and (@) work which, by its nature or the circumstances in which itis carried out, is likely to harm the health, safety or morals of children (Article 3). Each Member of the Convention shall design and implement pro- grammes of action to eliminate as a propriety the worst forms of child labour (Article 6.2); and taking into account the importance of education in eliminating child labour, take effective and time-bound measures to take preventive, protective, rehabilitative steps and ensure access to basic education and vocational training for all children removed from the worst forms of child labour (Article 7.2) Since the above Conventions are human rights instruments, under the approach adopted in Vishaka’ and other cases and in view of the Bangalore Declaration, judiciary regards it as filling the gap and influ- encing the municipal law. 14.2.5 Domestic Law in India ‘The Royal Commission on Labour (129) had noticed wide prevalence of the practice of child labour in India with long hours of work, with % According to the ILO Recommendation No. 190 (1999) Cl. 3 in determining hazardous nature of work, consideration shall be given to work which exposes children to physical, psychological or sexual abuse; work underground, under water, at dangerous heights or confined spaces; work with dangerous machinery, ‘equipments and tools or which involves the manual handling or transport of heavy loads; work in an unhealthy environment which may, for example, expose children to hazardous substances, agents or processes, or to temperatures, noise levels, or vibrations damaging to their health; work under particularly difficult conditions such as work for long hours or during the night or work where the child is unreasonably confined to the premises ofthe employer. ® Vishaka v. State of Rajasthan, (1997) 6 SCC241: AIR 1997 SC 3011; People’s Union for Civil Liberties (PUCL) v. Union of dia, (197) 1 SOC 301; AIR 1997 SC 568uw, catia Welfare and Social Transformation very low wages and without leisure The recommendations of the Commission were discussed in the Central Legislative Assembly and the Children (Pledging of Labour) Act, 1933 came to be passed, which may be said to be the first statutory enactment dealing with child labour. It had the objective of eradicating the pledging of young chil- dren by their parents, Itimposed penalty upon the employers and par. ents and invalidated the agreements pledging the children below the age of 5 years’ Many statutes were passed thereafter. The Employment of Children Act, 1938 listed two categories of employments in which children below the age of 14 and 15 years’ respectively were prohibited from employment. The first category consisted of occupations such as bidi making, carpet weaving, cement manufacture, cloth printing, mica cutting, shellac manufacture, scap manufacture, tanning and Wool cleaning, However, employment of children exclusively within the family enterprise or without hired labour or in state-aided schools was exempted. The second category consisted of occupations con- nected with railway transportation and ports, Employment of children between the age group of 15 and 17 was required to comply with the Tequirements of leisure and exclusion of night shift. The Act provided for supervision of law’s enforcement through the inspectorate and by imposition of penalties. The Labour Investigation Committee consit- uted by the Government of India in 1914 referred to the adequacy of {eeislative measures on child labour but open disregard of the law by the factories owing to lack of adequate supervision. The Labour Burcag Study disclosed employment of underage children, either uncertified or having false age certificate, in small-scale industries such as match manufacturing, cashew-processing, carpet-weaving and beedi-rolling industries ‘The founding fathers of the Constitution have bestowed thoughts on the protection of the child from exphoitative works and on best of its development. The clause on prohibition of employment of children in factories, etc. was incorporated without any controversial discus- sion. There was an unsuccessful attempt by Professor Shibban Lal Saksena to raise the age limit to 16 years’ so that larger section of chil dren would be given better protection in view of physical weakness of children in India to bear the workload The constitutional policy on child protection is comprehensive as it is spread over childrens entitlement arising from both prohibition of child labour and guar- antee of right to education and state's duty to implement Directive Principles. According to Article 24, “No child below the age of 14 years’ shall be employed to work in any factory or mine or engaged in any other hazardous employment.” Under Article 39(¢) state has the duty * CAD, Vol. Vil, 3-12-1948, at p. 815,Promwinion of cua woour ol to ensure 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; and that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dig- nity and that childhood and youth are protected against explosion and against moral and material abandonment [Article 39(f)]. According to Article 41, “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.” Sincere application of this provision avoids the need for child labour. Further, State's duty to provide for free and compulsory edu- cation for all children until they complete the age of 14 years, which is now enhanced to the position of correlative duty to a Fundamental Right under Article 21-A has also clear implication of eradicating child labour. Moreover, duty of the State under Article 47 to raise the level of nutrition and the standard of living and to improve public health has necessary ramification on rights of the children against hazard- ous labour. The overall thrust of these provisions is prohibition of child labour in hazardous employment and regulation of child labour in non-hazardous employment. Thomas Paul views, “Implicit in this view is the notion that poor children have no choice other than work, but at the same time the state as parers patriae, should see to it that they are prevented from hazardous employment.”” In view of integrated perception of the spirit of the Constitution for the welfare of the vul- erable, the distinction needs to be re-examined, and the responsibil- ity of educating the children should be shouldered by the state. In order to implement the constitutional and international obliga- tion towards eradication of child labour in different occupations, as on today, the following legislative enactments were in force, and continue * after the Child Labour (Prohibition and Regulation) Act, 1986 with necessary amendments about minimum age. (@) Section 67 of Factories Act, 1948 provides, “No child who has not completed his 14th year shall be required or allowed to ‘work in any factory.” (i) Section 26 of Plantation Labour Act, 1951, “No child who has not completed his 12 (after 1986, 14) years’ shall be required or allowed to work in any plantation.” ” Thomas Paul, “Child Labour-Prohibition x. Abolition: Untangling the Constitutional “Tangle” (2008) 50 JILI 143 at p. 157; also se, atp. 73.yur e mine uci LrUrISyUFMUEION Section 109 of Merchant Shipping Act, 1951, “No person under 15 years’ (after 1986 14 years’) of age shall be engaged or car- Tied to sea to work in any capacity in any ship, except (@ ina school ship, or training ship, in accordance with the prescribed conditions; or (® ina ship in which all persons employed are members of one family; or (© ina home-trade ship ofless than two hundred tons gross; or (@ 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” (i) Section 45 of Mines Act, 1952, (') “No child shall be employed in any mine, nor shall any child be allowed to be present in any part of a mine which is below ground or in any (open ‘cast working) in which any mining operation is being car- ried on. (2) After such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf, no child shall be allowed tc be present in any part of a mine above ground where any cperation connected with or inci- dental to any mining operation is being carried on.” (®) Section 21 of Motor Transport Workers Act, 1961, “No child shall be required or allowed to work in any capacity in any motor transport undertaking,” (i) Section 3 of Apprentices Act, 1961, “A person shall not be qualified for being engaged as an apprentice to undergo apprenticeship training in any designated trade, unless he (@ is not less than 14 years’ of age; and (®) satisfies such standards of education and physical fitness as may be prescribed: Provided that different standards may be prescribed in rela- tion to apprenticeship training in different designated trades and for different categories of apprentices, (ii) Section 24 of Bedi and Cigar Workers (Conditions of Employ- ment) Act, 1966, “No child shall be required or allowed to work in any industrial premises. (Pili) Child Labour (Prohibition and Regulation) Act, 1986 (Act61 of 1986) which replaced the Employment of Children Act, 1938. (@) Shops and Commercial Esteblishment Acts under different nomenclatures in various States. The inadequacy of the Employment of Children Act, 1938 was real- ised in People’s Union for Democratic Rights v. Union of India, a case ® (1982) 3 SCC 285: 1982 SCC (LES) 275that involved forced labour and child labour in construction industry. PN. Bhagwati, J. observed for the Supreme Court, “There can be no doubt that notwithstanding the absence of specification of construc tion industry in the Schedule to the Employment of Children Act, 1938, no child below the age of 14 years’ can be employed in construction work and the Union as also every State Government must ensure that the constitutional mandate is not violated in any part of the country.” ‘The judgment was an eye opener about the lacunae of the law and the need to reform in order to be comprehensive. ‘The Child Labour (Prohibition and Regulation) Act, 1986 which was enacted to reform the legal measure, has the policy of both prohibition and regulation. Section 3 of this Act has prohibited employment of children in certain occupations and processes. Part A of the Schedule to the Act contains the names of the occupations in which no child can be employed or permitted to work viz. any occupation connected with (@) transport of passengers, goods or mails by railway; ( cinder picking, clearing of an ash pit or building operation in the railway premises; (0 work in a catering establishment at a railway station involv- ing the movement of a vendor or any other employee of the establishment from one platiorm to another or into or out of a moving train; (@) work relating to the construction of railway station or with any other work where such work is done in close proximity to or between the railway lines; and (9 aport authority within the limits of any port. Part B contains names of some processes in which no child can be employed or permitted to work, if carried in workshops: () bidi-making; @) carpet-weaving: G) cement manufacture, including bagging of cement; @ cloth printing, dyeing and weaving; (5) manufacture of matches, explosives and fire-works; © mica-cutting and splitting; (9) shellac manufacture; © soap manufacture; (9) tanning; (10) wool-cleaning; (a) building and constructicn industry.ois. Law, Child Welfare and Social Transformation —— Oe ‘The Schedule may be expanded by the Central Government by notifi- n in Official Gazette on the basis of recommendation of the Child Labour Technical Advisory Committee (Sections 4 and 5). 33 occupations and 51 processes have been added to Part A and Part of the Schedule in 1998. Non-inclusion of agricultural processes that involve use of pesticides and other chemicals or machineries and omission of morally hazardous avocations like prostitution and beg- ging have been criticised by writers. There is also a view that any employment that denies to the child its right to primary education should be regarded as hazardous. In the light of express guarantee of compulsory primary education of children below the age of 14 years’ as a Fundamental Right, and imposition upon their parents or guard- ians the fundamental duty to provide opportunities of primary educa- tion, this view becomes indispensable. The prohibition under Section 3 is not absolute as it does not apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from Government. In practice, since nearly 80 per cent of India’s full time and part time child workers are trapped ina situation where the parents of working children and the families work jointly within family economicenterprises like farms, household industries and petty trade, by virtue of this proviso to Section 3, they fall outside the ambit of the Act Further, cunning acts of employers in establishing looms and other equipments in the houses of children make them escape from the clutches of law. In view of the fact that a work does not cease to be hazardous work only on account of being putin family atmosphere and in view of rampant abuse of this proviso, it is appropriate to drop this proviso to make the law more effective, Moreover, requirement of having “workshop” for conducting prohib- ited processes in Section 3 is problematic because if the same work is done in an informal place other than workshop it will not attract legal prohibition. Since the basic approach of the Act resembles that of the Act of 1938, not much substantive development is witnessed. The policy of regulation of child labour in circumstances other than those where it is prohibited is another major component of the Act. No child shall be required or permitted to work in any establish- ment in excess of such number of hours as may be prescribed for such establishment or class of establishments. Each period of work shall not ® Asha Bajpai, supra, n. 19 at pp. 174-75. A Bill prepared by Kanti Singh in 2000 suggests for a comprehensive definition of the expression “hazardous work” followed by elaborate measures for abolition, rehabilitation and welfare of child labour, ® Lakshmidhar Mishra, supra, n.20 at p.25;Z.M, Shahid Siddiqui, “Child Labour, Prohibition and Regulation” (1994) LL. Conference Proceedings on Childten C-25 at pil.ronwition of child labour 619 TP exceed three hours, which shall be preceded or followed by interval of one hous: There is also prohibition upon employing children in night shift, for overtime or in dual establishments (Section 7). Provision for compulsory weekly holiday, requirement upon the employer or occt- pier to inform the details of child employment to the inspector and to maintain register about child workers and facilitating the conditions of health and safety through observance of rules framed by the appro- priate Government are the other measures regulating the practice of child labour (Sections 8, 9, 11, 13). However, in spite of regulatory framework, the very permission for child labour involves compro- mise with the interests of children and has far reaching effect on their career. About the payment of wages to the child worker, the legislation is silent. Notifying under the Minimum Wages Act, 1948, some states have required payment to child workers, 60 per cent of wages payable to adults. Viewing that this policy encourages prospective employer to employ child labour than an adult, the Karnataka High Court in A Srirama Babu case “has observed, “This needs a re-look and an aboli- tion of such difference would certairly go a long way in increasing employment potential for grown up and dissuade the employer from employing child labour.” It is essential that the State should step in to retard the trend to employ child labour. Regarding enforcement of the Act, penalty clause and procedure are relied upon. For violating the prehibition under Section 3 either imprisonment for three to 12 months’ or fine of Rs 10,000 to 20,000 ot both may be imposed (Section 14). For repeated violations enhanced Penalty of double magnitude may be imposed. In case of non-compli- ance with the requirements of giving notice to the inspector, keeping of registers with correct entries or display of notice containing abstract of Section 3 imprisonment for a month or a fine extending to Rs 70, 000 or both may be imposed. A positive feature of the Act is that any person, police officer or inspector may file a complaint of the commis- sion of an offence under the Act in any court of competent jurisdic- tion (Section 16). In M.C. Mehta v. State of T.N.*, developing restitutive jurisprudence from Section 14 of the Act and relevant constitutional provisions the Supreme Court observed: “Taking guidance therefrom, we are of the view that 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 and the Inspectors, whose appointment is visualised by Section 17 to secure com- pliance with the provisions of the Act, should do this job. The inspectors ® A. Srirama Bau v. Chief Secy, Govt of Karnctak, ILR (1997) Kar 2269 * MC. Mehta (Child Labour Matter) v. State of TN, (1996) 6 SCC 756: 1997 SCC (L&S) 48: AIR 1997 SC 699,20 Lavo, Child Welfare and Social Transformation ‘appointed under Section 37 would see that for each child employed in Violation of the provisions of the Act, the concerned employer pays Rs Joo00 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.” Creative application of Section 14 on the above line is one of the most significant developments in the matter of rendering justice to the child. However, the issues relating to creation, handling and managing of the Fund, the authority to involve in these, and the method of enforcing the obligation of employers are not yet settled, resulting in prolonged litigation in High Courts? Regarding inspectorate, issuing of age certificate and composition of the Child Labour Technical Advisory ‘Committee there are provisions. 14.2.6 Judicial approach ‘There are some landmark judgments rendered by the Supreme Court both in recognising and remedying the pathetic situation of child workers. In Rajangant v. State of T.N, employment of children in beedi manufacture was considered as violating the Beedi and Cigar Workers (Conditions of Employment) Act, 1966 and the CLPRA 1986, The Court ‘observed, “Tobacco manufacturing has indeed health hazards. Child labour in this trade should therefore be prohibited as far as possible and employment of child labour should be stopped either immediately or ina phased manner.” Ina landmark judgment, M.C. Mehta v. State of T.N2, the Supreme ‘Court by an order of 31 October 1990 noted that in Sivakasi, as on 31 December 1985, there were 221 registered match factories employing 27338 workmen of whom 2941 wer2 children; and that the manufactur ing process of matches and fireworks is hazardous, giving rise to acci- dents including fatal cases. Keeping in view the provisions contained in Articles 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 on newspaper Teport about ‘occurrence of accidents in Sivakasi involving child labour, the Court took suo motu cognisance and appointed a Committee to report about the facts. The Committee reported that State ‘of TamikNadu should be directed to ensure that children are not employed in fireworks fac tories; that the children employed in the match factories for packing A batch of cases is pending before Karnataka High Court on these matters. 4 (1992) 1 SCC 221: 1992 SCC (LS) 1, ° (1996) 6 SCC 756: 1997 SCC (L&S) 48 AIR 1997 SC 699.A rurawusuure uy Crue OOH e2 —O~ov purposes must work in separate premises for packing for a duration not more than six hours a day; proper transport facilities and facilities for recreation, diet, insurance, socialisation and education should be provided either in the factory or close to the factory; piece-rate wages should be abolished and payment should be made on monthly basis commensurate to the work done by the children; and that Welfare Fund shall be created. The Court realised that child labour is an all-India evil and that without a concerted effort, both of the Central Government and various State Governments, this ignominy would not get wiped out. It thought it fit to travel beyond the confines of Sivakasi 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. After discussing the constitutional and international obligations towards eradication of child labour, the Court issued directions for survey of child labour within six months: for identifying the most hazardous employments keeping in mind the National Child Labour Policy announced by the Government of India; and for giving alterna- tive employment to adult member of the family of child worker nearest to the place of residence of the family. In those cases where alterna- tive employment would not be made available as aforesaid, the parent or guardian of the concerned child 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 sentby the parent or 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. 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. Regarding wages to be paid to the child workers in non-hazard- ous works, the Court observed, “We take note of the fact that the ten- der hands of the young workers are more suited to sorting out the manufactured product and process for the purpose of packing. We are, therefore, of the opinion that in consideration of their adaptabil- ity at least 60 per cent of the prescribed minimum wage for an adult ~ Following industries are identified as hazardous: the match industeyin Sivakasi, “Tamil Nadu; the diamond polishing industry in Surat, Gujarat; the precious stone Polishing industry in Jaipur, Rajasthan; the glass industry in Fitoeabad, Uttar ‘he brass-ware industry in Moradabad, Uttar Pradesh the hand-made carpet {industry in Mirzapur-Bhadohi, Uttar Pradesh; he lock-making industry in Aligarh, Ditar Pradesh; the slate industry in Markapur, Andhra Pradesh; the slate industy in Mandsaur, Madhya Pradesh,622 © Lato, Child Welfare and Social Transformation employee in the factories doing the same job should be given to them, Our indicating the minimum wage does not stand in the way of pre- scription of a higher rate if the State is satisfied that a higher rate is viable.” It is submitted, in view of the larger interests of children to have access to their fundamental right to education under Article 21-A, this approach needs rethinking and equal pay shall be mandated to retard the tendency to employ child labour. About the duty to provide education to children employed in non-hazardous works, itlaid down that the entire cost of education shall be borne by the employer. The Court also directed that regarding eradication and regulation of child labour, each district should be a unit and that with the help of separate cell in the Labour Department the problem shall be tackled in a con- certed manner. Another pronouncement of the Court having far-reaching impor- tance is Bandhua Mukti Morcha v. Union of India, The facts disclosed prevalence of child labour in carpet weaving industry in Varanasi, ‘Mirzapur, Jaunpur and Allahabad ereas and enormity of the problem of exploitation to which the children are subjected. Children rang- ing between five to 12 years’ had been kidnapped from the Village Chhichhori (Patna Block, District Palamau in Bihar) in January and February 1984 in three batches and were taken to village Bilwari in Mirzapur District of UP. for being engaged in carpet-weaving centres. They were forced to work all the day as slaves and were subjected to physical torture. The Commission/Committee visited 42 villages and found in all, 884 looms engaging 42 per cent of the work force with the children below the age of 14 years’. ‘The Court elaborated the need for education of children® and referred to the international commitment to provide compulsory pri mary education. It directed to evolve such steps consistent with the scheme laid down in M.C. Mehta case, as to provide: (@ compulsory education to all children either by the industries itselfor in coordination withitby the State Government to the children employed in the factories, mine or any other indus- try, organised or unorganised labour with such timings as is convenient to impart compulsory education, facilities for secondary, vocational profession and higher education; @ apart from education, periodical health check-up; » 1997) 10 soc 548, » The Court observed, “Ifthe children are better equipped with a broader human ‘output, the society will fel happy with them Neglecting the children means lossto the society as a whole. If children are deprived oftheir childhood —socially, economically physically and mentally—the nation gets deprived of the potential human resou for social progress, economic empowermen: and peace and order, the social st and good citizenry.”eg ae LY ) nutrient food ete; and @ entrust the responsibilities for implementation of the principles. A limitation in both the cases is that full-scale abolition of child labour ofall types was not aimed. The Court was conscious about practicality. It observed in Bandhua Mukti Morcha: “Total banishment of employment may drive the children and mass them up into destitution and other mischievous environment, mak- ing them vagrant, hard criminals and social risks etc. Therefore, while exploitation of the child must be progressively banned, other simultane- ‘ous alternatives to the child should be evolved including providing edu- cation, health care, nutrient food, shelter and other means of livelihood with self-respect and dignity of person. Immediate ban of child labour would be both unrealistic and counterproductive. Ban of employment of children must begin from most hazerdous and intolerable activities like slavery, bonded labour, trafficking, prostitution, pornography and dangerous forms of labour and the like’ The idea of total prohibition of child labour was not endorsed by the conference of State Labour Ministers also in 1997 on the ground that this objective had to be realised progressively and could notbe effected overnight. They agreed about the urgency of providing free, compul- sory and universal primary education. The High Court of Karnataka in 4. Srimma Babu looked to the issue of eradication of child labour in sericulture industry, especially weaving of silk sarees, where children in the age group of five to eight were engaged in huge numbers. While the Schedule to CLPRA is silent about this industry, the Court enunciated the criterion of hazardous work. To be hazardous, the work should be either inherently inju- rious to the children or the conditions of work are harmful to their health. The Court held that all employments which cripple the health of a child and which disable him from being a healthy member of the society should be treated as a hazardous industry. It directed the Commissioner of Labour to issue notices to the deviant establishments for appropriate action. One shocking disclosure made by the Court is with regard to improper use by the State Administration of funds released by the Central Government. In New India Assurance Co. ease the Karnataka High Court upheld the award of compensation to the child worker or his family in case of permanent disablement and death in case of accidents occurred during employment irrespective of the question whether they are » hid. “© A. Srirama Babu v. Chief Secy, Govt. of Kernctak, ILR (1997) Kar 2260. “New India Assurance Co. Lid. v. Rachaiah Besaiah Ganachari, LR (2000) Kar 473: (2001) 3 Kar Lj 135.24 * Law, Chile Welfare and Social Transformation 6) eee employed in hazardous or non-hazatdous works. The application of CLPRA would add to penal liability of the employer, the Court rea- soned. About the punitive measure by the Labour Commissioner, the Court in P. Sooryanarayana® viewed that compliance with the require- ment of notice and hearing should precede such measures. 14.2.7 National programme of action Eradication of child labour is a part of national labour policy. In 1987, a project based on plan of action was envisaged for its implementa- tion. Realising that the policy can be implemented only gradually and through selective approach in high child labour concentration area in view of vastness of the problem, National Child Labour Projects were launched in various places. NCLP contemplated: imparting non-for- mal education to enable the children to acquire a level of equivalence with corresponding grade and level in formal system and thus enable the children released from the work; supplementary nutrition through mid-day meal; imparting of skills for income and employment genera- tion; and effective enforcement of child labour law. Prime Minister’s Independence Day speech of 1994 set trend for withdrawal of children from workplace and putting them into schools. Setting up the National Authority for Elimination of Child Labour, the Prime Ministers circular to all the Chief Ministers stated, “Child Labour is a pernicious practice, a denial of the joy of childhood and access to social opportunities which eventually impairs the personal- ity and creativity of children, the evolution and growth of a full being, Within the broad ambit of child labour, the plight and predicament of girls is worse. Such a practice which is abhorrent to our social con- science, therefore, shall be eradicated from oursocio-economicmilieu.® ‘The vision statement focused on rehabilitation of released child labour through residential school system without causing economic burden upon the family and economic rehabilitation of the family of child labour by creation of rural job opportunities. As clear from the reports about the functioning of NCLP5, active involvement of local NGOs in running the rehabilitation schools, avoidance of the problem of drop outs and absenteeism by counseling, attractive nutritional programme, generation of public awareness about the evils of child labour, and sensitisation about welfare of workers in general have contributed to the substantive success of NCLPs.# Paucity of adequate funds had also obstructed the functioning of NCLPs in some areas. © P Sooryanrayana Shetty v. Stale of Karataka, ILR (1999) Kar 4721: (2000) 5 Kar Uf 570, © Prime Ministers Letter to All Chief Ministers of Union Territories, 10-4-1995, Lakshmidhar Mishra, supra, n,20 at pp. 203-17.—_—_— oo —( 1428 The role of NGOs and trade unions NGOs constitute important social capital for activating at the grass- root level the policy of preventing and eradicating the child labour practice and mainstreaming the released child workers into the learn- ing system. Identification of working children is a complicated task to be carried with well-planned strategies with which the NGOs are generally acquainted. Confidential enquiries at neighbourhood, sur- prise visits, checking of age records, and friendly interaction with local community without invoking hostility are the means employed in identification. Rehabilitation of child workers assumes physical, eco- nomic, and psychological dimensions. Making the educational institu- tion attractive through creation of positive environment conducive to learning with pleasure is another task in which the NGOs are quite conversant. Counselling and motivating the children and the parents about the need for learning and disedvantages of early labour upon ‘one’s career can be better handled by the NGO activists, Some of the models adopted for child labour eradication are note- worthy.® First, the Camp Model followed in Andhra Pradesh (MV Foundation) involves conducting of four months’ pre-school camp for psychological and academic preparation of prospective school chil- dren and their parents for enrolment of children into schools. This brings refreshing change in the attitude of parents in sending their children to school and avoids vagrancy amidst working children, It also brings seriousness in teaching profession, sense of confidence amidst youth and enthusiasm amidst Panchayats. Secondly, eliminat- ing Child labour through Community Mobilisation is a model popu- latised by the Central Government in its NCLP. Each District Child Labour Project is a registered society affiliated to umbrella organisa- tion like Centre for Rural Education and Development Action involved in withdrawing child workers from carpet looms and other work places and in mainstreaming them in formal education system. Face {o face interaction with parents, discussion with adult weavers, organ- ising village level meetings for collective discussion with panchayat members and other leaders and using the liaison with other leaders are some of the methods employed for mobilisation of public opin- ion. Thirdly, weaning away the children working on railway platforms from works and motivating them to learn in special schools is another strategy. Fourthly, litigating against child labour either by prosecution under Section 14 of CLPRA or by Public Interest Litigation. It can be seen that these strategies have been fruitful in mitigating the prob- em to a considerable extent. The NGOs like Bandhua Mukti Morcha, © bid, at pp. 272-85,020 «Law, Child Welfare and Social Transformation MV Foundation, Centre’of Concern for Child Labour, Bharat Siksha Sanstha, Campaign Against Child Latour, Katha, Ankuran etc. have contributed yeomen service to the cause. The participation of workers’ organisations and employers’ associ tions have been regarded as a quantum jump in the process of eradica. tion of child labour. Activities like raising the awareness of workers about child labour, dialogues with parents and employers, running of schools for rehabilitated child workers, crusading for child education have been instrumental in this task. Some of the employers’ unions like Chamber of Commerce have dissuaded their members from engaging child labour. On the whole, prohibition and regulation of child labour is a task Participated by private and public bodies in recent times in a concerted manner, That it has not remained as solitary venture of the State is a tremendous positive factor in the context of law-society interaction, where legal and moral responsibility is placed upon private actors like Parents, family, welfare institutions, employers and state.” Collectivist enthusiasm developed in this context will not allow sapping the elan Vitale of children due to work. Since bane of poverty is the root cause of child labour, the larger task of economic amelioration of the vulner- able section of the society should be aimed at as lasting solution. As the capitalistic and feudalistic society is the breeding ground for child labour, remedy for the same is to be fourd in controlling the economic Power of such economic structure and in uprooting poverty and illit- eracy:# Poverty can no longer be an excuse for child labour as the state stands as the ultimate guardian of children against child labour prac- tice. Education as a policy instrument for removal of children from labour and a means of empowerment should be largely relied upon for a desirable result. ‘bid, at pp. 296-308, woh. Madhava Menon, “The Rights of the Caild: Law, Policy and Enforcement (1996) SBRRM Journal of Law 24. * C. Pal “Basic Framework for Child Welfare under Indian Constitution” (1981) 7 Kurukshetra Law Journal 90;BK. Sharma and Vishwa Mitta, Child Labour and Urban Informal Sector (Deep and Deep Publications, New Delhi); Clarence, J. Dias, “The Child in the Developing World: Making Rights a Reality” in NR. Madhava Menon (Ea, Rights ofthe Child (NLSIU, Bangalore 199) at p. 48; VB, Coutinho, “Protecting the Employed Child’, Ibi at p. 95 UNICEF background paper, “The Right to be Child, SN. Jain, “Law and Child in India” in IN. Chaturvedi (Ed), Administration ‘ed Child Welfare (HPA , New Dethi 1975) at p. 81; Prakash C. Juneja, “Child in Domestic Service—A Need for Protective Legislation” (1985) 11 Indian Socto-Legal Journal, 31; NK. Indrayan, “Constitutional Framework and Equality Among Children” (1982-3) 8&5, Kurukshetra Law Journal at p. 17; Joseph Vadakkethala, “Child Labour”, [bid at p. 107, X. Vishnupriya, “A Study on Child Labour” (1995) 21, Indian Socio-Legal Journal 119, © Asha Bajpai, supra, n, 19 at p. 204ber 14.3 Adoption of children and related problems 143.1 Background Right to family life is one of the prominent human rights of the child as the child grows in its fold of intimacy and love. Adoption is an act of uprooting a child from the atmosphere of his or her natural family and transplanting him or her in adoptive family to facilitate continuation of the lineage of the latter. Traditional purpose of this artificial arrange- ment, both in Hindu Law and Roman Law, was to vest a child to a childless family or person But in modern times, adoption serves as an instrument to help the orphans, destitute and abandoned children. In both the circumstances protection of the interests of children gains great importance as any element of commercialisation of relationship shall be excluded. The problem of inter-country adoption associated with various types of abuses has raised serious issues about adequacy of law and of its social justice components. From the perspective of social transformation, it is a positive development that law’s role in this sphere has been that of infusing the human rights elements and ensuring protection of the interests of children rather than silently tol- erating private transactions based on commercialism. 143.2. Adoption in personal law Adoption is a legal concept followed in Hindu Law whereas other per- sonal laws do not provide for the same. Even Hindu texts had cer- tain reluctance about the practice of adoption, perhaps as it involved fictitious element and difficulties of compromise The genesis of the Practice is traceable to the belief that forcrossing the hell of ‘put’ there was need for son and the consequent psychology of sonless person that itis better to have a substitute of a son than to have no son.* Child ‘welfare was not the direct objective, but individual salvation through the adopted child was. Although Koran does not recognise the institu- tion of adoption, there is recognition of customary practice of adoption in some converted Muslim communities subject to declaration by the Parties» Further, acknowledgement of paternity and legitimisation * Paras Diwan, supra, n.23 at pp. 56-57, * Rigoeda: “O Agni, no son is he who springs from others.” Manu, IX-180, “The one who tries to cross the hell with the help of secondary sons obtained results similar to those obtained by one who tries to cross the water with the help of seave.” © Manu, IX437-8; Yah, 1-178; Baudhayana, 2-166. 5 The Koran, Vol. XXXIIL at pp. 4, 5; Abdurahiran v. Avoomma, AIR 1986 Mad 244; Moulci Mohammed v. 8. Mohaboob Begum, AIR 1984 Mad 7.fa: Jechantandhatee overcomes the problem of illegitimate children if the parties are agree- able. Under old Hindu Law, conception of adoption as a sacramental act had the implication of keeping the illegitimate and orphan children outside the purview of adoption It was regarded that adopted son should reflect the image of natural son. A daughter's son or sister's son could not be adopted. The doctrine of relating back was followed as a _matter of expediency. Law used to look to the problem from the angle ‘of sonless person rather than from the angle of adopted child. The Hindu Adoptions and Maintenance Act, 1956 (HAMA) made the insti- tution of adoption, a secular one equipped to solve the social problem of orphans, abandoned and refugee children. From the perspective of social changes spearheaded by the HAMA, following factors are worthy of consideration. Firstly, there is posi- tive development regarding the issue, who may be taken in adoption. Since any Hindu child can be adopted irrespective of caste and rela- tion to the adopter, there is scope for adoption of orphans, abandoned children or children whose paternity is not known or an illegitimate child Unlike the position earlier, adoption of daughter's or sister’s child or wife's sister's child is also permissible. By providing for adop- tion of female child, which was not permissible under old Hindu Law, gender discrimination is removed.” The provision that requires mini- mum age difference between adoptive father and adoptive daughter, and adoptive mother and adoptive son, checks possible exploitation. Further, the age of the child given in adoption shall not exceed 15 years’ unless there is a contrary custom. There is prohibition for adoption of married child [Section 10(i)} Secondly, the issue who can give in adoption has witnessed com- fortable developments. HAMA requires mother’s consent when the father gives his child in adoption (proviso to Section 7). A putative father, step-father and adoptive father have no competence to give the child in adoption as they do not come within the definition of “father”. A mother of an illegitimate child has power to give the child in adoption and the consent of putative father is not essential. While the mother of a legitimate child has no right to give in adoption except in case of incapacity of the father (her husband), she has such right after the death of the father even if itis contrary to his intention. The guardian of a child may give him or her in adoption when both the parents are dead or incapacitated due to renunciation of the world or Paras Diwan, supra n.23 at pp. 58-59, Srinivas Krishnarao Kango v. Narayan Deri Kango, AIR 1954 SC 379, 8.10 of HAMA. S.11Gi) of HAMA.are declared as of unsound mind or have abandoned the child. The guardian—whether person in charge of the orphanage or the person who brought up the child—has power to give in adoption only with the prior permission of the court" The court, while according permis- sion for adoption, should satisfy that the proposed adoption would be for the welfare of the child. The court will look to all the relevant factors such as physical and moral well-being of the child, the charac- ter, qualifications and socio-economic status of the proposed adopter and the place to which the child is likely to be taken after adoption. The court may refuse permission for adoption in case the applicant seeking permission for adoption has received or agreed to receive any payment or reward in consideration of the adoption. Thus, any effort towards commercialisation of adoption is made futile. Presently, law does not require court’s permission for adoption when done by the father or mother in accordance with the provisions of the Act. It has been commented by some scholars that court’s intervention even in those circumstances should be made essential in order to protect the interests and welfare of the child, especially when the widow or wid- ower or mother of illegitimate child eagerly opts for getting rid of the child without bothering about the welfare of the child. Thirdly, about the issue who can receive child in adoption, the legal development has traversed the path of social expediency. Adoption of sons permissible when the adopter has no son, son’s son or son's son’s son by legitimate birth. Adoption of daughter is permissible when the adopter has no daughter or son's daughter. Two persons cannot adopt the same child [Section 13(ei)]. Adopticn of child of opposite sex shall satisfy the requirement of age difference of 21 years’ between adopter and the adopted [Sections 11 (iii & io)}. While the original HAMA did not permit adoption of child by the guardian, the Amendment Act of 1962 provides for such permission in limited circumstances where both the parents are dead or have been declared by competent court as of unsound mind. Fourthly, there is categorical prohibition upon any person to receive any consideration in any form in connection with adoption from any person, Such act is also made punishable conduct. This policy is com- mendable as adoption shall be made kezping in mind only the welfare of the child, and gaining of personal economic benefit shall not be the ctiterion for adoption. Fifthly, the effect of adoption is such that the child severs all relations with his or her natural family for secular, religious and civil purposes except the restrictions about marriage with persons if he had been a member of the natural family (Section 12). It is only property vested * 5.94) HAMA,vou baw, Cra eeyure urwe OUCMUE LrungyyrmmuLioTE with him prior to adoption in his natural family that will continue with him, Rest of the economic opportunities and properties available to him is that which is forthcoming in adoptive family. But the adop- tive father has right to dispose of his property inter vivos, and thus the position of the adopted person becomes precarious (Section 13). To ‘overcome this problem, natural parents resort to ante-adoption agree- ment with the adoptive parents committing the latter to economic obli- gations towards the adopted child. The courts have upheld the legality of such agreements On the whole, the trend of developments in the sphere seems to be towards better protection of the interests of the adopted children. But whether the domestic legal framework suits to the imperatives of the international human rights norms needs to be examined. The Preamble to the UN Convention on Rights of the Child recognises that the child, for the full and harmonious development of his or personality, should grow up ina family environment, in an atmosphere of happiness, love and understanding. According to Article 20(1) of the Convention, “A child temporarily or permanently deprived of his or her family envi- ronment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assist- ance provided by the State.” Contemplating that foster placement and adoption are instances of such deprivation, Article 20(3) requires pay- ing of due regards to the desirability of continuity in child’s upbringing and to the child's ethnic, religious, linguistic and cultural background. Article 21 enjoins the State Parties, which recognise and permit the system for adoption, to ensure that the best interests of the child shall bbe the paramount consideration in the course of adoption. Particularly, it provides for intervention by competent authority, compliance with applicable procedure and consent of the parents; for choice of inter- country adoption only in case of non-availability of the opportunity for adoption within the country; for adequate safeguards in case of inter-country adoption in order to avoid improper financial gain. It is submitted, absence of specific duty on the part of adoptive parents to provide family environment and atmosphere of love and happiness and lack for assurance about reasonable continuity in child’s develop- ment are some of the problematic factors in the existing legal frame- work, and they need to be rectified. 143.3. Inter-country adoption The Roman legal concept of adoption for continuation of family’s li cage had its gradual impact upon the Western legal system, with a ™ Dina ji v. Dadi, (1990) 1 SCC 1: AIR 1990 $C 1153.Se a change of emphasis on charitable conduct towards the orphans and destitute With the global development of philanthropy and the increased population of orphans etc, the need for legal framework to deal with inter-country adoption was realised. The Principles on Declaration of Rights of Children and the Child Rights Convention reflected the international community's concern for children who were subjected to transplantation from their natural family environment. (In the background of shocking state of affairs about the conditions of internationally adopted children, the element of commercialisation involved in the adoption process and absence of procedural safeguards some efforts were made to provide general legal framework on adop- tion in India which were not successful in 1972 and 1980. Distilling the spirit of Articles 15, 39 and 24 and also creatively using the Guardians and Wards Act, 1890 some positive developments were launched by activist judiciary in India in a series of Lakshmi Kant Pandey cases. Lakshmi Kant Pandey v. Union of India, involved an allegation that Indian children of tender age were under the guise of adoption ‘exposed to the long horrendous journey to distant foreign countries at great risk to their lives and the survivors were in course of time becoming. beggars or prostitutes for want of proper care from their alleged foreign foster parents." Relie restraining Indian based private agencies “from carrying out further activity of routing children for adoption abroad” and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents was sought. The Supreme Court elaborately considered the thrust of interna- tional guidelines, national policy on welfare of children, importance of child welfare for national development, the provisions of proposed Adoption Bill and the ethos of civilised society on caring for the child. (The Court perused the prevalent practice on child adoption. The Court reasoned that since there is no statutory enactment in India providing for adoption of a child by foreign parents or laying down the proce- dure, which must be followed in such a case, resort shall be had to the provisions of the Guardians and Wards Act (8 of 1890) for the purpose of facilitating such adoption. In this regard, the approach of Bombay and Gujarat High Courts, were approved as valid. The primary object of giving the child in adoption must be the welfare of the child. The first option is give in adoption to adoptive parents within India. | © Paras Diwan, supra, n.23 at p. 85; Adoption Act, 1958 (UK). (1984) 2SCC 244: AIR 1984 SC 469, Re, Giooanni Marco Muzzu, AIR 1983 Bom 242; Re, Resklal Chhaganlal Metha, AIR 1982 Guj 193032 : Law, Child Welfare and Social Transformation The international guidelines were on the following lines: Group convened by the Secretary General of the United Nations on the request made by the Economic and Social Council as also the ‘Commission for Social Development adopted in 1978 a “Draft declara- tion on social and legal principles relating to the protection and wel- fare of children with special reference of foster placement and adop- tion, nationally and internationally.” It declared that every child has a right to a family. Children who cannot remain in their biological family should be placed in foster iamily or adoption in preference to institutions, unless the child's particular needs can best be met in a specialised facility. Children for whom institutional care was formerly regarded as the only option should be placed with families, both foster and adoptive, The primary purpose of adoption is to provide a perma- nent family for a child who cannotbe cared for by his or her biological family. in considering possible adoption placements, those responsible for the child should select the most appropriate environment for the particular child concerned. Sufficient time and adequate counseling should be given to the biological parents to enable them to reach a decision on their child's future, recognising that itis in the child’s best interest to reach this decision as early as possible. Legislation and serv- ices should ensure that the child becomes an integral part of the adop- tive family. Every child has a right toa amit) 7 Thereafter at the Regional Conference of Asia and Western Pacific held by the International Council on Social Welfare in Bombay in 1981, draft guidelines and procedure concerning inter-country adoption were formulated, (1) In all inter-country adoption arrangements, the welfare of the child shall be prime consideration. (2) Biological parents shall not be subject to any duress in making a decision about adoption. No commitment to an adoption plan shall be permitted before the birth of child. After allowing parents a reasonable time to reconsider any decision to relinquish a child for adoption, the decision should become irrevocable. It is the responsibility of the appropriate author- ity or agency to ensure that when the parents relinquish a child for adoption all of the legal requirements are met. If the parents state a preference for the religious upbringing of the child, these wishes shall be respected as far as possible, but the best interest of the child will be the paramount consideration. (3) Before any plans are considered for a child to be adopted by foreigners, the appropriate authority or agency shall consider all alternatives for permanent family care within the child’s own country. A child-study report shall be prepared by profes- sional workers (or experienced personnel who are supervised by such qualified workers) of an appropriate authority of agency, to provide information which will form a basis for the selection of prospectiveAdoption of children and-related problems 633 adopters for the child, assist with the child's need to know about his original family at the appropriate time, and help the adoptive parents understand the child and have relevant information about him or her, Before any adoption placement is finalised the child concerned shall be consulted in a manner appropriate to his or her age and level of development. (4) Regarding Adoptive parents it was required that in addition to the usual capacity for adoptive parenthood, they need to have the capacity to handle the trans-racial, trans-cultural and trans- national aspects of inter-country adoptions, Study report on them should disclose information about parents and other members of the family, emotional and intellectual capacities of prospective adop- ters, and their motivation to adoption, relationship (marital, family, relatives, friends, community), health, accommodation and financial position and religious affiliations andjor attitudes, (3) Inter-country adoption arrangements should be made only through Government Adoption Authorities (or agencies recognised by them) in both send- ing and receiving countries. They shall have experienced staff with professional social work education or experienced personnel super- vised by such qualified workers. In cases where the adoption is not to be finalised in the sending country after placement, it is the responsi- bility of the appropriate authority or agency in both the sending and receiving countries to ensure that the adoption is finalised as soon as possible. (6) Appropriate authorities or agencies in receiving countries shall ensure that there is adequate feedback to the appropriate authori- tics or agencies in sending countries, both in relation to inter-country adoption generally and to individual children where required. Where public attitude is known to be discriminatory or likely to be hostile on grounds of race or colour, the appropriate authority or agency in the sending country should not consider placement of the child. (7) It is essential that in inter-country adopticn child is given the same legal status and rights of inheritance, as if she or he had been born to the adoptive parents in marriage. (the Court referred to the Adoption of Children Bill, 1980 formulated by the Government of India, which dealt with the problem of adop- tion of Indian children by parents domiciled abroad. Section 23 of the Bill mandates with penalty clause that it shall not be lawful for any person to take or send out of India a child who is a citizen of India to any place outside India with a view to the adoption of the child by any person except under the authority of an order under Section 24. The latter provision prescribes the procedure to be followed by the District Court for determining the applicant's intention to adopt a child under the law of or within the country in which he is domiciled, his desire to temove the child from India for the said purpose and.to authorise the634 . Lavo, Ciild Welfare and Social Transformation applicant to remove the child for the purpose after satisfying that the Central Government has certified to the effect that: () the applicant is in its opinion a fit person to adopt the child; i) the welfare and interests of the child shall be safeguarded under the law of the country of domicile of the applicant; and (ii) the applicant has made proper provision by way of deposit or bond or otherwise in accordance with the rules made under this Act to enable the child to be repatriated to India, should oy it become necessary for any reason. ) (In view of the absence of specific statutory law on the subject, the Court relied upon the Guardians and Wards Act (8 of 1890) to require that the prospective adopters shall obtain the status of a guardian after satisfying the legal requirements, Section 17 of the Act provides that in appointing guardian of a minor, the Court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfate of the minor and in considering what will be for the welfare of the minor, the Court shall have regard to the age, sex, and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor, the wishes, if any, of a deceased parent and any existing or previous rela- tions of the proposed guardian with—the minor or his property. 1. When the parents of achild wantto give itaway in adoption or when the child is abandcned and it is considered necessary. in the interest of the child to give it in adoption, every effort must be made first to find adoptive parents for it within the country. 2.(Every application from a foreigner desiring to adopt a child must be sponsored by a social or child welfare agency (CWA) recognised or licensed by the Government.of the country in which the foreigner is resident, and not by any social or welfare agency in India, This is essential primarily for three reasons: ()o reduce, if not eliminate altogether, the possibility of profiteering and trafficking in children; (i) to know whether the foreigrer would be suitable as a parent for the child and whether he would be able to provide a stable and secured family life to the child and would be able to han- dle trans-racial, trans-cultural and trans-national problems likely to arise from such adoption; (ji) to have an authority or agency in the country of the foreigner who could be made responsible for supervising the progress of the child and ensuring that the child is adopted at the earliest in accord: ance with law and grows up in an atmosphere of warmth