M.C. Mehta v State of Tamil Nadu (1996)

The Sivakasi case. It is the leading Indian decision on child labour in hazardous industry, and for this paper its value is that the Court expressly grounded its directions in the Convention on the Rights of the Child - naming the date of the Convention and describing what it does - rather than merely mentioning it.

It is the natural companion to Article 24 of the Constitution, which provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

A public interest litigation was filed about the presence of child labour in the hazardous match industry at Sivakasi. The Court noted that the manufacturing process of matches and fireworks - Sivakasi being a traditional centre for both - is hazardous and gives rise to accidents, including fatal ones.

The Court gave directions as to how the quality of life of children employed in the factories could be improved, and passed a range of directions to all State Governments in relation to the abolition of child labour. It relied on the Convention on the Rights of the Child.

This passage is the reason the case is on this syllabus, and it should be reproduced closely:

The Court thought it appropriate to apprise itself of India's commitment to the world community, and noted that India has accepted the Convention on the Rights of the Child, which was concluded by the United Nations General Assembly on 20 November 1989. The Convention affirms that children's rights require special protection, and it aims not only to provide such protection but also to ensure the continuous improvement in the situation of children all over the world, and their development and education in conditions of peace and security. The Convention not only protects the child's civil and political rights but also extends protection to the child's economic, social, cultural and humanitarian rights.

Three things there are separately examinable: the date of the Convention; the principle of special protection; and the fact that the Convention is comprehensive, covering both categories of rights in a single instrument rather than splitting them as the two Covenants of 1966 did.

That third point is worth a paragraph in any question on the Convention. The Covenants of 1966 were divided because States could not agree that both sets of rights had the same character. By 1989 the drafters of the Convention on the Rights of the Child did not repeat that division. The same is true of the later Convention on the Rights of Persons with Disabilities. The generation of instruments that follows the Covenants treats the two categories as indivisible in its very structure - which is the Tehran Proclamation of 1968 finally taking effect in the drafting.

Article 24 prohibits the employment of a child below fourteen in a factory or mine or in other hazardous employment. It is a prohibition, and prohibitions have a characteristic weakness: they say what must not happen and are silent about what is to become of the children when it stops.

The Court's answer, in the directions it framed, was to treat the prohibition as the beginning rather than the end - which is exactly the approach the Convention requires, because the Convention is not only protective but developmental, aiming at the continuous improvement of the situation of children and at their development and education. A direction that merely closed the factories would satisfy Article 24 and betray the Convention.

This is the general lesson for Module 4 and it applies to every vulnerable group on the syllabus: the modern instruments impose positive, programmatic obligations, not merely prohibitions. The Convention on the Elimination of All Forms of Discrimination against Women requires States to take all appropriate measures; the Convention on the Rights of the Child requires the continuous improvement of the situation of children; the Convention on the Rights of Persons with Disabilities requires accessibility and reasonable accommodation. A student who describes these instruments as lists of prohibitions has misdescribed them.

• Lakshmi Kant Pandey v Union of India (1984) - inter-country adoption; the Court worked from the Declaration of the Rights of the Child adopted by the General Assembly on 20 November 1959, from the draft declaration on social and legal principles relating to the protection and welfare of children with special reference to foster placement and adoption, and from the guidelines formulated at the Regional Conference of Asia and the Western Pacific held in Bombay in 1981 and approved at a workshop in Brighton on 4 September 1982.
• Sheela Barse v Secretary, Children's Aid Society (1987) - directions for humane conditions in protective and remand homes for women and children, resting on the Declaration of the Rights of the Child of 1959 and Article 24 of the Covenant on Civil and Political Rights.
• M.C. Mehta v State of Tamil Nadu (1996) - child labour in hazardous industry, on the Convention on the Rights of the Child.
• Bachpan Bachao Andolan v Union of India (2011) - children trafficked into circus performance; the case defined the term missing children and laid down guidelines for the prohibition of trafficking of children in circuses, citing the Convention on the Rights of the Child of 1989, which India ratified in 1992, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) of 1985, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty of 1990, and the Hague Convention on Inter-Country Adoption of 1993.

Those four cases, with their dates and instruments, are a complete answer to a question on the rights of the child in India, and the fourth alone supplies four instruments with dates.