Child Labour and Prohibition (Amendment) Act, 2016 is insufficient to address the key challenges of child labour - The Daily Guardian
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Child Labour and Prohibition (Amendment) Act, 2016 is insufficient to address the key challenges of child labour

The amendment of 2016 provides that the government can provide a positive list of non-hazardous occupations where an adolescent can work and a child can be engaged. The impact of this amendment will be that this provision will allow the Government to restrict the employment of adolescents in occupations which have been categorized as a non-hazardous

Raju Kumar

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Child labour is a Socio-economic Problem and it is one of the challenges for a developing nation. To handle this challenge the government has provided many constitutional as well as legal rights. However, the key issue of child labour has not been addressed properly. The government in the year 2016 adopted the Progressive approach and amended the child Labour by introducing Child Labour and Prohibition (Amendment) Act, 2016. The Act receives the president’s assent on 29th of July, 2016. However, still the loopholes exist in the recent Act.

AMENDMENT OF 2016 AND ITS IMPACT: AN ANALYSIS

The 2016 amendment changes many things, which has a great impact on the Society. For instance, Before the Amendment of 2016, Children Below the age of 14 years were allowed to work in occupation except for 18 occupations and 65 processes but after the amendment of 2016, it completely prohibited the employment of children who are below the age of 14 years. This change has a direct effect on the society. This change will definitely ensure that all the children who are below the age of 14 years are in the school as per the Right to education act.

Further, before the amendment, Children who were below the age of 14 years were not provided with any help after their school hour but the 2016 amendment addressed this issue and it allowed the children to work only after their school hour or during their vacations. This will lead to the development of their traditional skills. Moreover, before the 2016 amendment, Children below the age of 14 years were permitted to work in family Business or occupation in both the hazardous and non-hazardous. However, after the amendment children below the age of 14 years are allowed to work in family Business or enterprises only if the said business or enterprises is non-hazardous. This change will protect the health of the children and it will ensure that the children are wellbeing. Furthermore, children will be allowed to work only if it is safe. Moreover, before this amendment the children were able to work in their family business even if it didn’t belong to the child’s family. But after the amendment, the children are allowed to work in family business even if it didn’t belong to the child’s family. However, the occupation should be ‘non-hazardous.’ Another change which took place by virtue of this amendment is pertaining to ‘Adolescents’. Before the amendment, Children who belong to above the age of 14 years were not prohibited on employment. However, After the amendment, Children between the age of 14-18 years have been categorized as Adolescents and they are prohibited to work in hazardous occupations. This amendment will Protect the adolescent’s health. Furthermore, Earlier the Adolescents were not provided with any working regulations regarding working hours and conditions. However, the amendment addressed this issue and it has Regulated working conditions for adolescents who are working in non-hazardous occupations. This change plays a vital role in protecting the Adolescent from exploitation who are working in non-hazardous occupations.

Moreover, Before the amendment, merely Schedule of 18 occupations and 65 processes were applicable for a child which tells that where a child cannot work and after the amendment, A child can’t work in any occupation. Moreover, the list of prohibited occupations has been made infinite. This amendment will have a significant impact as There is a complete ban on work and not just on the 18 occupations and 65 processes. Furthermore, before the amendment, no provision was there to provide a positive list of occupations where an adolescent can work. However, the amendment of 2016, addressed this issue and it provides that the government can provide a positive list of non-hazardous occupations where an adolescent can work and a child can be engaged. The impact of this amendment will be that this provision will allow the Government to restrict the employment of adolescents in occupations which have been categorized as a non-hazardous.

Furthermore, the legislation has also amended the nature of offence. Earlier before the amendment contravention of the provisions were non-cognizable offence. However, After the amendment, the contravention of provisions falls under the category of cognizable offence. The impact of this amendment is that there will be no need of the approval from the DM to take action on the FIR, when the child labour law gets violated. Moreover, the new amendment has also created accountability to the officers, which was lacking in the earlier act. Before the amendment, no officer was held responsible for the implementation of the Act. But, After the amendment District Magistrate or a subordinate officer can be made responsible for enforcement. Furthermore, he can be conferred with such powers. The impact of this amendment is that the Provision for laying specific responsibility on the designated Officer for violating the provisions of the Act creates accountability and it will ensure better enforcement. Another important change which took place after the amendment was that Earlier there were no Provision which deals with the rehabilitation fund for the rescued children. However, After the amendment, Statutory provision were inserted for a child adolescent labour rehabilitation fund with contribution of appropriate Government. The impact of this amendment is that the provision for a rehabilitation fund will ensure that the child/adolescent is not only rescued but his/her future is secured by the amount collected in the fund. Furthermore, this amount can be used for the education and welfare of the rescued child.

IS CHILD LABOUR AND PROHIBITION AMENDMENT ACT 2016, EFFICENT ENOUGH TO DEAL WITH THE KEY CHALLENGES OF CHILD LABOUR?

We have already discussed the amendment of 2016, and have compared it with the earlier existing law, and the effect of the amendment. However, the question before us is whether does child labour and prohibition amendment act of 2016, is efficient enough to deal with the key challenges involves in child labour? There is no doubt that the amendment was the dire required in the current scenario. However, the answer is No. There are many provisions which we must welcome. However, all the key changes are not acceptable and it leaves many drawbacks. For instance, the amendment changes the definition of ‘parents’ and has broadened the term which is a concern in itself. This definition is in contravention of the Juvenile Justice Act, 2000 which makes it punishable for anyone who employs a child in hazardous occupations. Furthermore, it is also in contravention of the International Labour Organization minimum age convention and UNICEF Convention on child rights.  Here it is also notable that, India is a signatory of all the conventions mentioned above and hence it has also a binding effect.

Furthermore, Section 3 to 5 of the Child Labour and Prohibition amendment act, 2016 allows the children to work in family enterprises. However, the drawback of these sections is that the legislation has not defined the hours of work with family. This will definitely defeat the purpose of the legislation. The children will be engaged only to the traditional work and this can lead to a hamper on his education. The legislation must have to frame the time limitation for these sections. 

Furthermore, the legislation itself permits child labour. However, it is subject to certain conditions. But the thing is that the conditions imposed are easily vulnerable. The permission to work after the school hour will definitely impose an additional burden on the child both physically and mentally. Moreover, this is also in contravention of Article 21 of the Indian Constitution which deals with the Right to good health. Moreover, Section 14 (3) talks about the compounding of offense committed for the first time or any offence committed by a person being parent or guardian on payment of such amount will lead to encouragement to violate the law. Furthermore, the list of hazardous occupations for children has been reduced from 83 to 3 which only includes Mining, Explosives, and Hazardous process. This concludes that the work on chemical mixing units, cotton farms, etc. has been dropped. Furthermore, In India, a large number of people are dependent on agriculture. The legislation permits to work there, therefore it may lead to the defeat of the legislation as the children at a large scale may be involved in this work. 

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‘The crime committed has to be considered in the remission or premature policy of the state’

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The Supreme Court in the case Radheshyam Bhagwandas Shah, Lala Vakil vs State of Gujarat observed that where the crime was committed has to be considered in the remission which is applicable in the State and the pre­mature release in terms of the policy

The Court noted while hearing the writ petition that in terms of the policy which is applicable in the State of Gujarat where the crime was committed and not the State where the trial stands transferred and concluded for exceptional reasons under the orders of this Court once the crime was committed in the State of Gujarat, after the trial been concluded and judgment of conviction came to be passed, all further proceedings have to be 6 considered including remission or pre­mature release, as the case may be, in the instance case. under Section 432(7) CrPC, there cannot be a concurrent jurisdiction of two State Governments, can be either the Central or the State Government of the appropriate government.

in terms of Section 432(7) CrPC, the trial was to be concluded in the same State and ordinarily in the State of Gujrat the crime in the instant case was admittedly committed. by an order 06.08.2004., the case was transferred in exceptional circumstances by this Court for limited purpose for trial and disposal to the neighbouring State i.e., the State of Maharashtra, observed by the bench of Apex Court.

As mentioned by the petitioner in the plea that by judgment impugned dated 17.07.2019., the application for pre­mature release has to be filed in the State of Maharashtra and not in the State of Gujarat and His petition filed in the High Court of Gujarat was dismissed taking note of Section 432(7) CrPC on the premise that since the trial has been concluded in the State of Maharashtra. under Sections 433 and 433A of the Code of Criminal Procedure, 1973, the petition was filled by the petitioner for premature release further the petitioner stated that that he had undergone under the custody of more than 15 years 4 months.

Section 302, 376(2) (e) (g) and reading it with Section 149 IPC, Shah was found guilty for the offence, the offence committed by him in the State of Gujrat.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

The bench comprising of Justice Ajay Rastogi and the justice Vikram Nath observed that under Section 432(7) CrPC can be either the Central or the State Government but there cannot be a concurrent jurisdiction of two State Governments of that appropriate government.

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Seeking reduction of qualifying the percentile for admission in ayurveda course: A plea in Supreme Court

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The Supreme Court in the Case Amit Kumar v UOI & Or’s observed in Ayurveda course in view of large number of vacancies and for seeking reduction of qualifying percentile for admission, an ayurveda aspirant who appeared in NEET 2021 has approached the Court.

the court had observed that lowering the minimum marks and reducing the percentile for admission to first year BDS Course would not amount to lowing the standards of Education and further the Court directed to lower the percentile mark by 10 percentiles for admission in first year of BDS Course for academic year 2020-2021, with regards to substantive the contentions made by the petitioner by referring the judgement passed in the case in Harshit Agarwal & Or’s v Union of India.

the percentile may also be reduced for Ayurveda programme enabling the Petitioner to take admissions then If percentile is being reduced/considered for reduction for BDS course was further stated by the petitioner in the plea, while referring to an order dated 04.29.2022. Thereafter the top Court had asked Centre to consider lowering the percentile for BDS Courses.

Seeking the Centre’s response in a plea by filing a counter affidavit, noted by the Top Court specifying the above-mentioned information:

after deducting the admission granted for MBBS Courses (BDS Courses), the total number of Candidates.

in All India Quota and State Quota, the totals number of vacant seats.

in government colleges on one hand & private/deemed colleges on the other hand, the number of seats which are remaining.

the petition was filed through AOR Neeraj Shekhar and for the petitioner Advocate Shivam Singh appeared.

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Bank case rejected by Supreme Court against farmer

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The Supreme Court in the case Bank of Maharashtra & Or’s v Mohanlal Patidar observed an order given by the High Courts of directing the bank the OTS proposal given by a farmer who had availed a loan from the bank, the court further pulled up the Bank of Maharashtra for challenging the order.

The Bank shall complete remaining formalities and provide all consequential benefits flowing therefrom to the petitioners, the court further stated that it is needless to emphasize The OTS proposal given by the petitioners in both the cases shall be accepted by the Bank and ‘sanction letters’ be issued forthwith, the court allowed the petitioner plea.

The petitioner not only promptly challenged the said order, it is noteworthy that petitioner never acceded to the unilateral decision dated 25th August 2021 and even otherwise the letter dated 25th August 2021 is held to be illegal by us, clause-7 of policy cannot take away the fruits of OTS benefits, within two months from the date of issuance of order dated 22th September 2021, the petitioner filled the instant petition and further the court directed we are unable to give stamp of approval to the impugned orders and action of the Bank, observed by the bench comprising of Justice Sujoy Paul and the justice Dwarka Dhish Bansal while setting aside the impugned orders of the bank.

In an order dated 03.09.2021 it was stated and it showed that the petitioner was required to pay minimum 10% of the OTS amount within stipulated time and that he had deposited Rs.35,00,000/- out of Rs.36,50,000/- within the stipulated time, it was argued before the court by the counsel.

As full and final settlement of the dues, he will be required to deposit Rs.50.50 lakhs as he was informed by the Asset Recovery Branch of the Bank.

Whole law comes into place when a matter of farmers come as the down payment were also accepted and it was further stated by the bench in an oral remark You don’t file cases against the ones who loot 1000s of crores.

The respondent had obtained a loan and intended to pay it in terms of a One Time Settlement which was quantified as Rs 3650000/-. in furtherance thereof the respondent had deposited Rs 35,00,000 with the bank, in the above-mentioned matter.

The bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme, contended by the counsel further the counsel stated that the bank had miserably failed to accept the same and on the contrary, decided to enhance the compromise amount to Rs.50.50 lakhs unilaterally which was contrary to the OTS scheme.

The bench comprising of Justice DY Chandrachud and the justice Surya Kant observed and remarked while dismissing the plea assailing Madhya Pradesh High Court’s order dated 02.21.2022 Such a litigation in Supreme Court will spoil the families of farmers financially, Go after bigger fish.

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In Company Law the duomatic principle is applicable even in Indian context: Supreme Court

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The Supreme Court in the case Mahima Datla vs Renuka Datla observed and stated that it will be applicable even in the Indian context, if the same is consented by all members ‘strict adherence to a statutory requirement may be dispensed with if it is demonstrated in the Duomatic Principle.

It was therefore held that G.V. Rao never seized to be a Director of the Company in view of the acquiescence by Dr. Datla and he had withdrawn his resignation prior to its acceptance, the resignation dated 6th April 2013 was clearly not accepted by Mr. G.V. Rao, as it is clearly being showed by her conduct and there is overwhelming evidence to show that Dr. Datla had accepted Mr. G.V. Rao back into the Board, in this case the court noted.

anything the members of a company can do by formal resolution in a general meeting, they can also do informally, if all of them assent to it, as stated briefly in the Duomatic Principle as derived from the decision In Re: Duomatic Ltd further the court noted the case of Salmon v. Salmon Co. Ltd, as it was held in that case if a company is bound in a matter intra vires by the unanimous agreement of its members. As In Re the court noted that the Duomatic Principle as derived from the decision.

Mr. G.V. Rao continued to carry on as the Director in view of the acquiescence by Dr. Renuka Datla? And weather can the Duomatic Principle can be invoked to state that the issue of resignation of the Director had lapsed, as one of the issues being raise in the appeal filled before the Apex Court.

The High Court of Judicature at Hyderabad for the State of Telangana and Andhra Pradesh allowed the Company appeal filed by Dr. Datla and the court further issued the various directions as this petition was dismiised by the Board as only to ensure Dr. Datla doesn’t have sufficient shareholding to maintain a petition under Sections 397 and 398 of the Companies Act, 1950, as it was being approached by Dr. Datla to the Company Law Board complaining that the holding of board meetings was illegal as an attempt was made to increase the number of members in the Company.

there is no protest by Dr. Renuka Datla regarding attendance of Mr. G.V. Rao. Dr. Renuka Datla also participated in the Board Meetings dated 22nd August 2013 and 25th September 2013, without any protest for continuation of Mr. G.V. Rao as its Director as in the resolution passed. The latter which was placed in the meeting of the Board on 9th April 2013, seeking withdrawal of his resignation as on 6th April 2013, G.V Rao submitted his resignation letter and further which it was later withdrawn by G.V Rao on 9th April 2013. As on 20th March 2013 the late Dr. Vijay Kumar Datla as the directors of the Company were Biological E. Ltd are Dr. Renuka Datla and one G.V Rao.

The bench comprising of Justice Vineet Saran and the justice JK Maheshwari clarified that the said principle is only applicable in those cases wherein bona fide transactions are involved and that ‘Fraud’ is a clear exception.

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SUPREME COURT ASKS WEST BENGAL GOVERNMENT TO LOOK INTO REPORT OF OLDER WOMEN PUSHED INTO PROSTITUTION AFTER COVID IN SOUTH 24 PARGANAS

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The Supreme Court in the case Budhadev Karmaskar v. State of West Bengal and Or’s observed that women of older age groups are being forced into prostitution after the onset of the COVID-19 pandemic and further the court ordered the State of West Bengal to look into the issue that in South 24 Parganas District of West Bengal.

The traffickers who were finding it difficult to get hold of young women due to the lockdown had shifted focus and by taking advantage of their acute poverty which was being worsened by the pandemic engaged older women from West Bengal’s costa regions in prostitution. An article was referred by the Amicus, The Article covered the plight of the women in the Sunderban Delta region of West Bengal and stated and noted that the pandemic coupled with climate change is now pushing older women and even the grandmothers into the trade, the Article was published on the website of The Print.

The pandemic that has stretched on for more than two years, it was said by the activists working in the area and this made them vulnerable to traffickers who found it difficult to procure young women and minor girls and shifted focus to middle aged women from West Bengal’s coastal regions due to their abject poverty.

No precautionary measure are taken by the State Government though the State Government is aware it further request the State Government to look upon the issue as due to the pandemic In South 24 Parganas (West Bengal), aged women are being used for this purpose for their poverty.

The Bench asked the Counsel representing the State of West Bengal to look into this issue and respond when the matter is put up for hearing on 05.17.2022., At the request of the Amicus the bench directed.

The Bench Comprising of Justice L. Nageswara Rao and the justice B.R. Gavai observed that the older women in South 24 Parganas District of West Bengal, from poor families, especially after the onset of the pandemic, are being pushed into prostitution and the Amicus further alleged though the State Government aware of the same but the State Government have not taken any precautionary measures. The Bench noted while hearing a plea seeking various benefits for sex workers across the country, Amicus Curaie, Mr. Piyush K. Roy apprised it that, as per news reports.

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Supreme Court sets aside POCSO conviction; TN custom is of marriage of girl with maternal uncle

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The Supreme Court in the case K Dhandapani vs State observed while hearing a plea that after noticing that he had married the prosecutrix and had two children, a man accused in a POCSO case, the court set aside the conviction.

The Court cannot shut its eyes to the ground reality and disturb the happy family life of the appellant and the prosecutrix. Thereafter the Court said that it has been informed of the custom in Tamil Nādu of the marriage of a girl with the maternal uncle. if the accused-appellant does not take proper care of the prosecutrix, she or the State on behalf of the prosecutrix can move for modification of this Order, further being clarified by the Court. The bench is of the considered view that the conviction and sentence of the appellant who is maternal uncle of the prosecutrix deserves to be set aside in view of the subsequent events that have been brought to the notice of this Court, while considering the facts and circumstances of the Case.

The Court observed, while allowing the appeal that the marriage between the accused and the prosecutrix is not legal and it was submitted by the state in an appeal that the prosecutrix was aged 14 years on the date of the offence and gave birth to the first child when she was 15 years and the second child was born when she was 17 years.

the prosecutrix stated that she has two children and they are being taken care of by the appellant and she is leading a happy married life, the statement given by her was being noticed by the Court. the allegations submitted by the

the appellant against him was that he had physical relations with the prosecutrix on the promise of marrying her and that he married the prosecutrix and they have two children, submitted before the Apex Court.

Section 6 of Protection of Child from Sexual Offences (POCSO) Act, 2012 and reading with the Sections 5(j)(ii) read with Section 6, 5(I) read with Section 6 and 5(n). the maternal uncle of the prosecutrix who is the accused in the said case was being convicted under the said sections and was sentenced to undergo rigorous imprisonment for a period of 10 years by the Madras High Court.

The Bench comprising of Justice L Nageswara Rao and the justice B R Gavai observed while rejecting the objection raised by the State which contended that the marriage might be only for the purpose of escaping punishment that the court have been informed about the custom in Tamil Nādu of the marriage of a girl with the maternal uncle and on the ground of reality and to disturb the happy family life of the appellant and the prosecutrix, The Court cannot shut its eyes.

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