R. School of Law - Kiit University

THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016
MEMORIAL ON BEHALF OF THE PETITIONER
TEAM CODE: R-

BEFORE THE HON'BLE
SUPREME COURT OF ISLANDIA
ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION
W.P. (CIVIL) NO. ....... OF 2016

UNDER ARTICLE 32 OF THE CONSTITUTION OF ISLANDIA
IN THE MATTER OF ARTICLE 14 AND ARTICLE 21 OF THE CONSTITUTION OF ISLANDIA
MR. MACOCA...................................................................................................................PETITIONER
V.
UNION OF ISLANDIA.....................................................................................................RESPONDENTS
UPON SUBMISSION TO THE HONBLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF
SUPREME COURT OF ISLANDIA
~ MEMORIAL ON BEHALF OF THE RESPONDENT ~
THE

TABLE OF CONTENTS
LIST OF ABBREVIATION ................................................................................................................... 3

INDEX OF AUTHORITIES ................................................................................................................... 4
STATEMENT OF JURISDICTION .......................................................................................................... 9
STATEMENT OF FACTS ................................................................................................................... 10
HISTORY OF ISLANDIA ............................................................................................................ 10
THE UNDISPUTED TRUTH OF CHILD LABOUR IN ISLANDIA ..................................................... 10
BRINGING ABOUT THE AMENDMENT ACT ............................................................................... 10
FILING OF THE PUBLIC INTEREST LITIGATION ......................................................................... 11
STATEMENT OF ISSUES ................................................................................................................... 12
SUMMARY OF ARGUMENTS ............................................................................................................ 13
ARGUMENTS ADVANCED .................................................................................................................. I
I. THE WRIT PETITION IS MAINTAINABLE IN THE INSTANT CASE.................................................. I
1. THE
NEW AMENDMENT IS NOT VIOLATING ANY FUNDAMENTAL RIGHTS . .............................. I
2.EXISTENCE OF ALTERNATIVE REMEDY................................................................................... I

3. THE WRIT PETITION IS BASED UPON MERE APPREHENSION. ................................................ II
II. SECTIONS 3 AND 3A OF THE CHILD LABOUR (PROHIBITION AND REGULATION) AMENDMENT
ACT, 2016 ARE NON-DISCRIMINATORY IN NATURE AND THEREFORE IN CONSONANCE WITH
ARTICLE 14 OF THE CONSTITUTION. ............................................................................................ III
1. PRINCIPLE OF EQUALITY AS UNDER ARTICLE 14. ................................................................. III
2.THE EXCEPTIONS TO SECTION 3 ARE NOT DISCRIMINATORY ................................................. IV
3.THE TEST OF REASONABLENESS ............................................................................................. V
4. THE DEFINITION OF HAZARDOUS PROCESSES IS NOT ARBITRARY. ......................................... VI
5. IT IS NOT A PIECE OF EXCESSIVE DELEGATION AND SHOULD NOT BE STRUCK DOWN ...... AS
UNCONSTITUTIONAL................................................................................. ............................. VI
III. THE IMPUGNED ACT DOES NOT VIOLATE ARTICLE 21 OF THE CONSTITUTION OF ISLANDIA VIII
1. THE PROCEDURE ESTABLISHED BY LAW IS FAIR, JUST AND REASONABLE. ....................... VIII
2. THE ACT PROVIDES FOR A HEALTHY ENVIRONMENT FOR THE CHILDREN .............................. X
IV. THE IMPUGNED ACT
IS IN CONSONANCE WITH THE INTERNATIONAL INSTRUMENTS AND

PROVISIONS OF THE CONSTITUTION OF ISLANDIA........................................................................ XII
1. THE ACT IS IN CONSONANCE WITH THE CONVENTION OF RIGHTS OF THE CHILD. ............... XII
2. THE ACT IS IN CONSONANCE WITH THE DPSP'S OF THE CONSTITUTION. ............................. XII
PRAYER......................................................................................................................................... XIII
PAGE 2

LIST OF ABBREVIATION
Paragraph
Section
AIR
All India Record
Art
Article
BBA
Bachpan Bachao Andolan
BBS
Balak Bachao Samiti
CRC
Convention on Rights of the Child
ICSER
International Covenant on Economic and Cultural Rights
UDHR
Universal Declaration of Human Rights
ICCPR
International Covenant on Civil and Political Rights
DPSP
Directive Principles of State Policy
ed.
Edition
Govt.
Government
CLPRA
Child Labour (Prohibition and Regulation) Act
Hon'ble
Honorable
ILO
International Labour Organisation
MOLE
Ministry of Labour and Employment
SC
Supreme Court
SCC
Supreme Court Cases
SCR
Supreme Court Reports
U.S
United States of America
UN
United Nations
UNCRC
United Nations Convention on Rights of the Child
UK
United Kingdom
Vol.
Volume
WP
Writ Petition
www
World Wide Web
PAGE 3

INDEX OF AUTHORITIES
CASE LAWS
Indian Supreme Court Cases
Sl.No.
1.
Case Law
Andhra Industrial Works v. Chief Controller of Imports and Ors AIR 1974
Pg. No.
I
SC 1539.
2.
Ashok Kumar Thakur v. Union of India & Ors., (2008) 6 SCC 1.
3.
Ashuthosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.
III
4.
Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726.
5.
Avinash Mehrotra v. Union of India (Supreme Court W.P No. 483 of
2004).
6.
Baburao v. State of Bombay Housing Board, AIR 1954 SC 153.
IV
7.
BALCO Employees Union (Regd.) v. Union of India, (2002) 2 SCC 333.
8.
Chanan Singh v. Registrar. Co-op Societies, AIR 1976 SC 1821.
II
9.
D.S. Nakara and Ors. v. Union of India, AIR 1983 SC 130.
IX
10.
Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457.
11.
Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC
I
VIII
101.
12.
Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618.
III
13.
Francis Coralie v. Union Territory Of Delhi, AIR 1994 SC 1844.
14.
Gopi Chandra v. Delhi Administration, AIR 1959 SC 609.
IV
15.
Guruvayur Devaswom Managing Committee v. C K Rajan and Ors. (2003)
7 SCC 546.
16.
Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 466.
VII
17.
HMT Ltd v. Mudappa, AIR 2007 SC 1106.
II
18.
In Re. Delhi Laws Act , AIR 1951 SC 332.
VI
19.
Jyoti Pershad v. Administrator, Union Territory of Delhi, AIR 1961 SC
VII
1605.
20.
Kanubhai v. State of Gujrat, AIR 1987 SC 1159.

PAGE 4
II

21.
Kapan v. Jagmohan, AIR 1981 SC 126.
II
22.
Kewal Singh v. Lajvanti AIR 1980 SC 161.
IV
23.
LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811.
VIII
24.
M S Booth Educational Trust v. State of Gujrat, AIR 2000 Guj 160.
VIII
25.
Mahesh Chandra v. Regional Manager, U.P. Financial Corporation, AIR
VIII
1993 SC 935.
26.
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
I, VIII
27.
Municipal Corporation of Delhi v. Birla Cotton Mills, AIR 1968 SC 1232.
28.
Om Kumar v. Union of India, AIR 2000 SC 3689.
29.
Om Narain Agarwal v. Nagar Palika, Shahjahanpur, AIR 1993 SC 1440.
IV
30.
R.S. Joshi v. Ahit Mills Limited 1977 (40) STC 497.
IX
31.
Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
32.
S.G. Jaisinghani v. Union of India and Ors., [1967] 2 SCR 703.
33.
Sheela Barse and Others v. Union of India and Others, (1986) 3 SCC 632.
34.
Shiva Manjundappa v. State of Karnataka, AIR 1982 SC 231.
IV
35.
State of WB v. Anwar Ali Sarkar, AIR 1952 SC 75.
IV
36.
Tinkushia Electric Supply Co. v. State Of Assam. AIR 1990 SC 123.
III
37.
Union of India v. Paul Manickam, AIR 2003 SC 4622.
II
38.
Vasantlal v. State of Bombay, AIR 1961 SC 4.
39.
Vellore Citizens' Welfare Forum v. Union Of India, (1996) 5 SCC 647.
40.
W.B v. Ratnagiri Engeering Private Ltd. (2009) 4 SCC 453.
II
VI
VIII
VII
U.K Case Laws

41.
Associated Provincial Picture House v. Wednesbury, (1948) KB 223.
VIII
42.
Council of Civil Services Union v. Minister of Civil Services, (1984) 3 All
VIII
ER 935 (HL).
LEGISLATIONS
1.
Child Labour (Prohibition and Regulation) Act, 1986
PAGE 5

2.
Child Labour (Promotion and Regulation) Amendment Act, 2016
3.
Juvenile Justice (Care and Protection of Child) Act, 2015
4.
Right of Children to free and Compulsory Education, 2009
5.
The Factories Act, 1948
INTERNATIONAL TREATIES AND COVENANTS

1.
Convention of Rights of the Child
2.
International Covenant on Civil and Political Rights
3.
International Covenant on Economic Social and Cultural Rights
4.
Universal Declaration of Human Rights
CONSTITUTIONAL PROVISIONS
1.
Article 12
2.
Article 13
3.
Article 14
4.
Article 21
5.
Article 23
6.
Article 24
7.
Article 32
8.
Article 39
9.
Article 41
10.
Article 51
BOOKS
1.
Bonnard, French Administrative Law And The Common Law World, (4th ed., 1954).
2.
D. D. Basu, Shorter Constitution of India, (13th ed., Vol.1, 2001).
3.
D.D Basu, Commentary on the Constitution of India, (8th ed., Vol. 1, 2014).
4.
PAGE 6

5.
6.
Franziska Humbert, The Challanges of Child Labour in International Law, (1st ed.,
2009).
7.
S. Kailash, Z. Bupinder, Globalization, Development and Child Rights, (1st ed., 2006).
8.
V.N Shulka's Constitution of India, 49 (M.P Singh, 12th ed., 2013).
ARTICLES & JOURNALS

1.
Arti Singh, Arbitrary action of the state in conflict with article 14 of the constitution of
India, available at https://lawreports.wordpress.com/2009/06/12/arbitrary-actions-ofthe-state-are-in-conflict-with-article-14-right-to-equality-of-the-constitution-of-india/,
last seen 13/10/2016.
2.
Pramod Kumar Agarwal, Anil Chandra Pathak, A Socio Economic Analysis Of Child
Labour In India 1 (1) Lakshya: Journal of Science & Management, 107, 108 (2015).
WEB RESOURCES
1.
www.heinonline.in (HEINONLINE)
2.
www.jstor.org (JSTOR)
3.
www.judis.nic.in (SUPREME COURT OF INDIA OFFICIAL)
4.
www.legal.un.org. (UNITED NATIONS)
5.
www.manupatrafast.com (MANUPATRA)
6.
www.ssconline.co.in (SCC ONLINE)
7.
www.westlawindia.com (WESTLAW)
MISCELLANEOUS
1.
Child Labour Amendment Bill: Welcome move, but concerns persist, available at
http://www.business-standard.com/article/economy-policy/child-labour-amendmentbill-welcome-move-but-concerns-persist-116072400345_1.html,
12/10/2016.
PAGE 7
last
seen
on

2.
PTI, Child Labour Act: Govt allows under-14 children to work in non-hazardous
family enterprises, available at http://www.firstpost.com/india/child-labour-act-govtallows-under-14-children-to-work-in-non-hazardous-family-enterprises-2242120.html,
last seen on 10/10/2016.
3.
Public Information Bureau, Child Labour Amendment Bill 2012, available at

http://pib.nic.in/newsite/Print Release.aspx?relid=121636, last seen on 11/10/2016.
PAGE 8

STATEMENT OF JURISDICTION
The petitioner has humbly approached the Hon'ble Court through a Public Interest Litigation
under Art.32 of the Constitution of Islandia. The present memorandum contains the facts,
contentions and arguments of the present case.
Article 32 of the Constitution of Islandia which reads as follows:
32. Remedies for enforcement of rights conferred by this Part(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 )
and ( 2 ), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution
PAGE 9

STATEMENT OF FACTS
HISTORY OF ISLANDIA
Islandia is a quasi-federal democratic republic country that gained its freedom from European
colonial powers in 1957.The Constitution declares Islandia as a sovereign, democratic, republic,
secular and socialist nation.
THE UNDISPUTED TRUTH OF CHILD LABOUR IN ISLANDIA
The census conducted in 2011 revealed that between the years of 2001 and 2011, the increase in
the population was of 181 million. However, there was a reduction of 5.05 million in the
population group of children between the ages of 0-6. It was further revealed by National Sample
Survey Organization that the country is home to 4.2 million child labourers. On the other hand,
the report published by International Labour Organisation i.e ILO stated that Islandia itself
accounts for 26 million of the 168 million child labourers in the world. Traditionally in Islandia,
formal education has been a privilege where upper castes and classes monopolizing access to
education. The major occupations engaging child labour are Pan, Bidi & Cigarettes (21%),
Construction (17%) , Domestic workers (15%) and Spinning & weaving (11%). The Islandian
Prime Minister while participating in the protocol meeting of United Nations Convention on
Rights of the Child (UNCRC) 1989 faced embarrassment at international level when 2011
census report was presented and efforts of Islandian Government were widely criticized.
BRINGING ABOUT THE AMENDMENT ACT
A high level committee was set up to access the problem of child labour in the country and a
need to change the existing law was seen for the objective of mitigating child labour in the
country. Section 3 and 3A were added to the Child Labour (Prohibition and Regulation) Act
1986 by way of the Child Labour (Prohibition and Regulation) Amendment Act 2016. The
amendment completely prohibits the employment of children up to the age of 14 years but allows
them to work in family enterprises and farms after school hours and during holidays. Children
working as artists in the audio-visual entertainment industry, including advertisement, films,
television serials or any such other entertainment or sports activities, except the circus, have also
been granted exemption, provided the work does not affect their school education. Moreover,
PAGE 10

adolescents are prohibited from working in any of the hazardous occupations or processes as laid
out by the Factories Act, 1948.
FILING OF THE PUBLIC INTEREST LITIGATION
This case has been filed by Mr. Macoca on behalf of his organization Balak Bachao Samiti
(BBS) alleging that the two aforementioned Sections violate Articles 14 and 21 of the
Constitution as it defeats the very purpose of protecting children from exploitation. He also
questioned the legislative decision making while limiting the hazardous activities to three as
specified in the annexed schedule. The Supreme Court of Islandia has excepted the PIL as it has
found merits in the case.
The Laws of Islandia are Pari-Materia with the Laws of India.
PAGE 11

STATEMENT OF ISSUES
ISSUE I
WHETHER THE WRIT PETITION IS MAINTAINABLE IN THE INSTANT CASE.
Issue II
WHETHER THE FUNDAMENTAL RIGHT UNDER ARTICLE 14 OF THE CONSTITUTION OF
ISLANDIA HAS BEEN VIOLATED IN THE INSTANT CASE.
ISSUE III
WHETHER THE FUNDAMENTAL RIGHT UNDER ARTICLE 21 OF THE CONSTITUTION OF

ISLANDIA HAS BEEN VIOLATED IN THE INSTANT CASE.
ISSUE IV
WHETHER THE IMPUGNED ACT IS IN CONSONANCE WITH THE INTERNATIONAL INSTRUMENTS
AND PROVISIONS OF THE CONSTITUTION OF ISLANDIA IN THE INSTANT CASE
PAGE 12

SUMMARY OF ARGUMENTS
ISSUE I. THE WRIT PETITION IS NOT MAINTAINABLE IN THE INSTANT CASE.

Sections 3 and 3A of the Amendment Act do not violate any fundamental rights. They are in full
conformance with the Part III of the Constitution. There has been no direct and inevitable effect
on the fundamental rights with the enactment of these provisions. Art. 32 confers extra- ordinary
jurisdiction and the same must be used sparingly and in circumstances where no alternative
remedy is available. Here, the petitioner has not exhausted.
ISSUE II. THE FUNDAMENTAL RIGHT OF EQUALITY UNDER ARTICLE 14 OF THE CONSTITUTION
OF ISLANDIA HAS NOT BEEN VIOLATED IN THE INSTANT CASE.
The law is not arbitrary or discriminatory in nature as it is based on valid classification. The
classification is made on the basis of family enterprise and for artists working in the audiovisual
industry. The object of the legislation is to protect children from exploitation and support the
wholesome development of children. Therefore, with respect to the object, the classification is
valid. Moreover, Art 24 guarantees the right to education to children only up to the age of 14.
Therefore, the distinction made between a child and an adolescent is reasonable. This
provision is in consonance with the principle of reasonability.
ISSUE III. THE IMPUGNED ACT
DOES NOT VIOLATE
ARTICLE 21
OF THE
CONSTITUTION
OF
ISLANDIA.
The Child Labour (Prohibition and Regulation Act) 2016 does not violate Article 21 as it is not
arbitrary and unreasonable, further the Act prohibits Child Labour and thereby promoting right to
education for children under 14 years of age. The Act clearly bars children and adolescents to
work in hazardous occupation thereby promoting right to healthy life.
IV. THE IMPUGNED ACT IS IN CONSONANCE WITH THE INTERNATIONAL INSTRUMENTS AND
PROVISIONS OF THE CONSTITUTION OF ISLANDIA.
The International Instruments have been taken into consideration while amending the law,
further no international covenant has been violated as the United NationsConvention of Rights of
The Child give the right to the member states as for the minimum age and working condition.
Further Article 24 is promoted by the enactment of the impugned Act.
PAGE 13

ARGUMENTS ADVANCED
I. THE WRIT PETITION IS MAINTAINABLE IN THE INSTANT CASE.

1. It is submitted before this Hon'ble Court that in the violation of fundamental rights, a PIL,
for enforcing the rights violated can be filed under Article 32 1 as guaranteed by Part III of
constitution2.In the instant case, firstly, there has been no violation of any fundamental rights and
secondly, the petitioner has failed to exhaust his alternative remedy under Article 226.3
1. THE
2.
NEW AMENDMENT IS NOT VIOLATING ANY FUNDAMENTAL RIGHTS .
The Jurisdiction of Article 32 can be evoked where there is violation of Fundamental
rights.4 In the instant case, Section 3 and 3A are not violating any fundamental rights rather
they are in consonance with Part III. Moreover there has been no direct and inevitable effect on
the fundamental rights.5 In the second part of the submission it will be shown that there is no
violation of fundamental rights by the amending the Act.
2.EXISTENCE OF ALTERNATIVE REMEDY.
3.
For the enforceability of fundamental rights, the Constitution has provided two remedies
i.e. Article 32 and Article 226. It has been held that Art. 32 confers extra- ordinary jurisdiction,
the same must be used sparingly and in circumstances where no alternative remedy is available.6
Art. 32(1) confers a right to move the SC by appropriate proceedings. Appropriate proceedings
include procedural factors such as Res Judicata7, delay in filing the petition and parallel
proceedings8 in another court.
Article 32, the Constitution of Islandia, Pari Materia to the Constitution of India ( Herein after referred as
Constitution).
2
Andhra Industrial Works v. Chief Controller of Imports and Ors AIR 1974 SC 1539 at 10; Guruvayur
Devaswom Managing Committee v. C K Rajan and Ors. (2003) 7 SCC 546 at 50; BALCO Employees Union
(Regd.) v. Union of India, (2002) 2 SCC 333.
3
Article 226, Constitution of Islandia.
Ramjilal v. Income Tax Officer, AIR 1951 SC 97.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726.
Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457.
Durga Das Basu, Shorter Constitution of India, 396 (13th ed., Vol.1, 2001).
PAGE I

3. The petitioner in the instant case had the remedy to approach the Honble High Court9.
Three decisions of this Hon'ble Court have observed that petitioners who alleges violation of
Fundamental rights has to approach the High Court first rather than Supreme Court in the first
instance. In Kanubhai v. State of Gujrat10, the reason given for the view was that there was a
huge backlog of cases pending before the Supreme Court. In another case the court has observed
that the petitioner has to show as why the High Court was not approached or could not be
approached
11
and unless satisfactory explanation is shown, filing petitions directly to Supreme
Court is discouraged.12
4. It is submitted that the petitioner had an alternative remedy to approach the High court under
Art. 226 The power of High Court under Art. 226 is wider than the powers of this Court under
Art. 32 of the Constitution.
3. THE WRIT PETITION IS BASED UPON MERE APPREHENSION.
5.
A writ petition may be liable to be dismissed if it is premature 13. Ordinarily, a Court
confines itself to the facts at hand and does not delve into assumptions.14 In HMT Ltd v.
Mudappa,15 it was held that a writ petition against a notification for the proposed acquisition of
land under the Karnataka Industrial Areas Development Act, 1966 was premature. 16Similarly, in
the present case, the notification of the Central government has not come out providing the list of
"Non-hazardous Processes" and therefore assuming the upcoming list will be a violation of
Fundamental Right should not be accepted. Therefore the respondent humbly submits that the
petitioner lack locus standi and the petition shall be dismissed.
Article 226, the Constitution of India.
10
Kanubhai v. State of Gujrat, AIR 1987 SC 1159.
11
Union of India v. Paul Manickam, AIR 2003 SC 4622.
12
W.B v. Ratnagiri Engeering Private Ltd. (2009) 4 SCC 453.
13
Kapan v. Jagmohan, AIR 1981 SC 126 at 25.
14
Chanan Singh v. Registrar.Co-op Societies, AIR 1976 SC 1821 at 6,7.
15
HMT Ltd v. Mudappa, AIR 2007 SC 1106.
16
Ibid at 17- 18.

PAGE II

II.
SECTIONS 3
AND
3A
AMENDMENT ACT, 2016
OF THE
CHILD LABOUR (PROHIBITION
AND
REGULATION)
ARE NON-DISCRIMINATORY IN NATURE AND THEREFORE IN
CONSONANCE WITH ARTICLE 14 OF THE CONSTITUTION.
1. Article 14 of the Constitution guaranties the citizen's right to equality under Law. Equality
before law is a dynamic concept having many facets.17The amendments made to the Child
Labour (Prohibition and Regulation) Act 1986, by way of amending Sections 3 and 3A is not
arbitrary and unreasonable.
1. PRINCIPLE OF EQUALITY AS UNDER ARTICLE 14.
2.
The Constitution of Islandia envisages "Equal Protection of Law" under Article 14 in
equal circumstances.18 The idea of equality of law does not involve the idea of absolute equality
among all. All it guarantees is the similarity of treatment and not identical treatment 19. Equal
protection means the absence of any arbitrary discrimination by the laws themselves or their
administration.20If the law in question is based on rational classification it is not regarded as
discriminatory.21 The question of discrimination will arise only as between persons who are
similarly, if not identically situated.22
3. In the present case, Section 3 of the Act23 states that(1) No child shall be employed or permitted to work in any occupation or process.
(2) Nothing in sub-section (1) shall apply where the child,
(a) helps his family or family enterprise, which is other than any hazardous occupations or
processes set forth in the Schedule, after his school hours or during vacations;
(b) works as an artist in an audio-visual entertainment industry, including advertisement, films,
television serials or any such other entertainment or sports activities except the circus, subject to
such conditions and safety measures, as may be prescribed: Provided that no such work under
this clause shall affect the school education of the child.
17
D.D Basu ,Commentary on the Constitution of India, 979 (8th ed., Vol. 1, 2014).
18
Tinkushia Electric Supply Co. v. State Of Assam. AIR 1990 SC 123.
19
D.D Basu ,Commentary on the Constitution of India, 1390 (8th ed., Vol. 2, 2014).
20
Ibid at 1383.
21
Ashuthosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.
22
Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618.
23
The Child Labour (Prohibition and Regulation) Act, 2016.

PAGE III

2.THE EXCEPTIONS TO SECTION 3 ARE NOT DISCRIMINATORY

4.
While the act completely prohibits the employment of a child under the age of 14, the
scope of a childs involvement in helping is limited to that of him helping his family members
and family enterprise. This would allow children to learn their traditional skill and also develop
life values like a sense of discipline, responsibility, decision making etc.
5. The right of equal treatment only applies to equals and not unequals.24 Classification means
segregation in classes which have a systematic relation, usually found in common properties and
characteristic. It postulates rational basis and does not mean herding together of certain persons
and classes arbitrarily.25 The difference which will warrant a reasonable classification need not
be great. What is required is that it must be real and substantial and must bear some just and
reasonable relation to the object of the legislation.26
6. This classification is valid as it is made on the basis of intelligible differentia. Classification
based on age and area of operation is valid if it is based on intelligent differentia. 27When
classification is challenged the court must take into account matters of common knowledge,
common report, history of time and every other relevant facts 28 along with the presumption of
constitutionality of the legislation.29
7. Here the classification made on the basis of family enterprise and for artists working in the
audiovisual industry. The object of the legislation is to protect children from exploitation and
support the wholesome development of children. Therefore, with respect to the object, the
classification is valid. Here, this classification between children is to protect the health and
ensure childrens well being as now child not allowed to work in both hazardous and nonhazardous family enterprises.
8. As was held in the case of Gopi Chandra v. Delhi Administration30, classification on the
basis of extent of danger as basis is valid. A child working with a family member or in a family
24
Om Narain Agarwal v. Nagar Palika, Shahjahanpur, AIR 1993 SC 1440.
25
State of WB v. Anwar Ali Sarkar, AIR 1952 SC 75.
26
Baburao v. State of Bombay Housing Board, AIR 1954 SC 153.
27
Shiva Manjundappa v. State of Karnataka, AIR 1982 SC 231.
28
Kewal Singh v. Lajvanti AIR 1980 SC 161.
29
Supra 19, at 1408.
30
Gopi Chandra v. Delhi Administration, AIR 1959 SC 609.

PAGE IV

enterprise is less likely to be exploited. Moreover, working as an artist in an audiovisual industry

after school hours decreases the likelihood to be exploited in physical labour etc.
3.THE TEST OF REASONABLENESS
9.
An obvious test to apply is to see whether there is any discernible principle emerging
from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is
prescribed for doing an act and there is no impediment in following that procedure, performance
of the act otherwise and in a manner which does not disclose any discernible principle which is
reasonable, may itself attract the vice of arbitrariness.31 Rule of law contemplates governance by
laws and not by humor, whims or caprices of the men to whom the governance is entrusted for
the time being. It is trite that be you ever so high, the laws are above you. 32
10. The Act completely prohibits employment in any family enterprise with the exception
of help being allowed and that too in childs own family enterprise, only if it isnon-hazardous
and after school hours and during vacation. The basic objective of the amendment is to ensure no
hindrance in the school education and hence even help in family or own family enterprise has not
been permitted at the cost of education. A child if made to help during school hours is an offence
under the Amended provision. Hence Section 3 of the Amendment Act is reasonable and in
conformance with Article 14 of the Constitution.
11.Moreover, Art 2433 guarantees the right to education to children only up to the age of 14.
Therefore, the distinction made between a child and an adolescent is reasonable. Section 3A
states that No adolescent shall be employed or permitted to work in any of the hazardous
occupations or processes34
Hence, it allows the employment of adolescents in populations that are not hazardous in nature.
This provision is in consonance with the principle of reasonability.
31
Arti Singh, Arbitrary action of the state in conflict with article 14 of the constitution of India, available at
https://lawreports.wordpress.com/2009/06/12/arbitrary-actions-of-the-state-are-in-conflict-with-article-14-right-toequality-of-the-constitution-of-india/, last seen 13/10/2016.
32
S.G. Jaisinghani v. Union of India and Ors., [1967] 2 SCR 703.
33
34
17, Moot Proposition.

PAGE V

4. THE DEFINITION OF HAZARDOUS PROCESSES IS NOT ARBITRARY.

12. In Section 3A, adolescents are prohibited from working in mines, with inflammable
substances or explosives and in hazardous processes. The processes within the ambit of this
section that are prohibited by the reason of it being a hazardous process is provided by a
Schedule in the Factories Act, 1948.35 This act of the legislature is not arbitrary as the Factories
Act is not specifically made for adult workers. It also protects by the interests of adolescent
workers. This can be seen as Chapter VII of the Act refers specifically to young workers.
Moreover, this schedule is non exhaustive in nature and therefore, more processes that are
specifically hazardous to children can be added by the way of notification if such a requirement
is seen to arise.
5. IT IS NOT A PIECE OF EXCESSIVE DELEGATION AND SHOULD NOT BE STRUCK DOWN
AS UNCONSTITUTIONAL.
13. It has been accepted that Parliament does not possess the legislative power as an inherent
and original power. That power has been delegated to it by constitution. Parliament thus
possesses not a right that it can delegate by its sweet will, but a competence that the Constitution
obliges it to exercise itself. It cannot legally delegate its legislative functions to the executive.
Such delegation would be unconstitutional.36
14. It is well settled that essential and primary legislative functions must be performed by the
legislature itself and they cannot be delegated to the executive. Essential legislative functions
consist of determination of legislative policy and its formulation as a rule of conduct. In other
words, a legislature has to discharge the primary duty entrusted to it. Once the essential
legislative powers are exercised by the legislature, all ancillary and incidental functions can be
delegated to the executive37
15.The question whether there is excessive delegation or not, has to be examined in the light of
three broad principles. Firstly, essential legislative functions to enact laws and to determine
legislative policy cannot be delegated and second, in the context of modern conditions and
complexity of situations, it is not possible for the legislature to envisage in detail every
35
Ibid.
36
Bonnard, French Administrative Law And The Common Law World, 93 (4th ed., 1954).
37
In Re. Delhi Laws Act , AIR 1951 SC 332, See Municipal Corporation of Delhi v. Birla Cotton Mills, AIR 1968
SC 1232.
PAGE VI

possibility and make provisions for them. The legislature, therefore, has to delegate certain
functions provided it lays down legislative and third, if the power is conferred on the executive
in a manner which is lawful and permissible, the delegation cannot be held to be excessive
merely on the ground that the legislature could have made more detailed provisions38
16. In dealing with the challenge to the vires of any statute on the ground of excessive
delegation it is necessary to enquire whether the impugned delegation involved surrender of
essential legislative function and whether the legislature has left enunciation of policy and
principle to the delegate. If the reply is in the affirmative, there is excessive delegation but if it is
in negative, the challenge must necessarily fail. Here the legislature has enacted the law properly
and through section 3 of it delegates the power to amend the Schedule.
17. Moreover, the legislature has also made an attempt to put in things in mentioned Schedule
and just through provisions asked the Central Government to add the things to the list. The Act
also provides that the Central Government has to give three months time before adding anything
in the schedule which is within the prescribed provisions of the Act.
38
Jyoti Pershad v. Administrator, Union Territory of Delhi, AIR 1961 SC 1605, See Harishankar Bagla v. State of
Madhya Pradesh, AIR 1954 SC 466, Vasantlal v. State of Bombay, AIR 1961 SC 4.
PAGE VII

III. THE IMPUGNED ACT DOES NOT VIOLATE ARTICLE 21 OF THE CONSTITUTION OF ISLANDIA.
1. In the present case, there has been no violation of Article 21 of the Constitution. The
fundamental right under this article guarantees a Law which is just, free from capricious thoughts
and ill-will. The Amendment Act39 has established a strong will promoting Article 21A and 24
by stating that no child under the age of 14 can be employed in any employment or occupation.
1. THE PROCEDURE ESTABLISHED BY LAW IS FAIR, JUST AND REASONABLE.
2.To establish the violation of Article 21, the Act should be subjected to equality test of Article
14 and the test of reasonableness40 under article 19.41 Article 14 ensures fairness42 and
guarantees against arbitrariness43. It provides every action of the Government must be informed
by reasons44 and guided by public interest.45 Article 19 provides that a restriction can be
characterized to be reasonable if it strikes a balance between the fundamental and restriction
imposed thereof.46
3. In the present case, the Government of Islandia is facing the menace of increase in child
labour47 and therefore enacted an amendment
Act which would countermand the earlier
redundant act of Child Labour (Prohibition and Regulation) Act, 1986.

The original child labour law ban employment of children below 14 in only hazardous
industries48, but the impugned act49 makes it vividly clear that children between 14 and 18 years
will not be allowed to work in a hazardous processes50.
39
The Child Labour (Prohibition and Regulation) Amendment Act, 2016.
40
Associated Provincial Picture House v. Wednesbury, (1948) KB 223, See Council of Civil Services Union v.
Minister of Civil Services, (1984) 3 All ER 935 (HL).
41
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
42
Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101, See Mahesh Chandra v. Regional
Manager, U.P. Financial Corporation, AIR 1993 SC 935.
43
Express Newspaper v Union of India, AIR 1986 SC 872, See Netai Bag v. State of West Bengal, AIR 2000 SC
3313.
44
D.D Basu Commentary on the Constitution of India, 3156 (8th ed., Vol. 3, 2014).
45
M S Booth Educational Trust v. State of Gujrat, AIR 2000 Guj 160, See LIC v. Consumer Education and
Research Centre, AIR 1995 SC 1811.
46
Om Kumar v. Union of India, AIR 2000 SC 3689.
47
5, Moot Proposition, The 1st Youth Vibe National Moot Court Competition, 2016.
48
PTI, Child Labour Act: Govt allows under-14 children to work in non-hazardous family enterprises, available at
http://www.firstpost.com/india/child-labour-act-govt-allows-under-14-children-to-work-in-non-hazardous-familyenterprises-2242120.html, last seen on 10/10/2016.
49
3 and 3A, The Child Labour (Prohibition and Regulation) Amendment Act, 2016.
PAGE VIII

4. The Amendment Act endeavors to harmonize both the Child Labour Act and Right to
Education Act51 by fixing the minimum age to enter employment at 14 years. Also, the act seeks
to harmonize the National law with ILOs Convention52, which requires countries to prohibit
employment of children in the worst forms of child labour. The amendment also prohibits
employment of adolescents in hazardous labour. 53
5. It is prudent to also keep in mind the countrys social fabric and socio-economic conditions,
in a large number of families, children help their parents in their occupations like agriculture,
artisanship etc. and while helping the parents, children also learn the basics of occupations.
Therefore, striking a balance between the need for education for a child and the reality of the
socio-economic condition and social fabric in the country, the amendment has been enacted.54
6. The constitutionality of the statute has to be determined on the totality of its provisions. A
law has to be judged on the constitutionality and the generality of its provisions which is a
celebrated principle and not by freaks and exceptions.55
7.Thus the fundamental principle is that Article 14 forbids class legislation but permits
reasonable classification for the purpose of legislation which classification must satisfy the twin
tests of classification being founded on an intelligible differentia which distinguishes persons or
things that are grouped together from those that are left out of the group and that differentia must
have a rational nexus to the object sought to be achieved by the statute in question.56
8. The impugned expressly prohibits child labour in any occupation for children under 14years
of age. It only allows the children to help their family enterprise and farms after school hours and
during vacations. Further this act has brought in stricter form of punishment extending to a term
of three years and increase in folds in fine in both the cases of employer and parents.
50
First Schedule, The Factories Act, 1948.
51
4, The Right Of Children To Free And Compulsory Education Act, 2009
52
ILO Convention 182.
53
Child Labour Amendment Bill: Welcome move, but concerns persist, available at http://www.businessstandard.com/article/economy-policy/child-labour-amendment-bill-welcome-move-but-concerns-persist116072400345_1.html, last seen on 12/10/2016.
54
Public Information Bureau, Child Labour Amendment Bill 2012, available at http://pib.nic.in/newsite/Print
Release.aspx?relid=121636, last seen on 11/10/2016.
55
R.S. Joshi v. Ahit Mills Limited 1977 (40) STC 497.
56
D.S. Nakara and Ors. v. Union of India, AIR 1983 SC 130.

PAGE IX

9. The Act is made in conformity with the socio-economic fabric of the country in order to
develop life and occupational skills which shall be helpful for the economically backward
society to progress for a better opportunity.
10. Bhagawati, C.J57 quoted from National Policy for the welfare of Children incorporated to
provide better social and educational development to the children of India58 : "The Nation's
children a supremely important asset. Their nurture and solicitude are our responsibility.
Children's programme should find a prominent part in our national plans for the development of
human resources, so that our children grow up to become robust citizens, physically fit, mentally
alert and morally healthy, endowed with the skill and motivations needed by society. Equal
opportunities for development to all children during the period of growth should be our aim, for
this would serve our large purpose of reducing inequality and ensuring social justice".
2. THE ACT PROVIDES FOR A HEALTHY ENVIRONMENT FOR THE CHILDREN.
11. Article 21 envisages a right to life and personal liberty of a person, which not merely
guarantees the right to continuance of a persons existence but a quality of life59, and therefore,
State is casted upon a duty to protect the rights of the citizen in discharge of its constitutional
obligation in the larger public interest60, guaranteed as a fundamental right under Article 21 of
the Constitution.61
12. The Constitution provides meaning to the word 'education' beyond its dictionary
meaning.62 The Supreme Court had directed the Government to set a deadline to provide
compulsory and free education.63
13. Children are the future of the nation, they are vulnerable due to their age and physical
power and they cannot make plan for their future and cannot understand the result of any work.
57
Sheela Barse and Others v. Union of India and Others, (1986) 3 SCC 632.
58
UK Essays. Legal Aspects Of Child Labour In India Young People, available

https://www.ukessays.com/essays/young-people/legal-aspects-of-child-labour-in-india-young-peopleessay.php?cref=1, last seen 10/10/2016.
59
at
Francis Coralie v. Union Territory Of Delhi, AIR 1994 SC 1844; See Vellore Citizens' Welfare Forum v. Union
Of India, (1996) 5 SCC 647.
60
Consumer Education And Research Centre And Others v. Union Of India And Others , AIR 1995 SC 922.
61
Ibid. 28.
62
Avinash Mehrotra v. Union of India (Supreme Court W.P No. 483 of 2004).
63
Ashok Kumar Thakur v. Union of India & Ors., (2008) 6 SCC 1.

PAGE X

So they should be protected from exploitation and should be given opportunities for their
physical and mental development.64
14. The Act promote education as guaranteed by the Constitution65 under the exception as it
does not allow a child to get involved in any type of work irrespective of the nature of the job
whether it is hazardous or non hazardous. Moreover the act only allows the child to "help" in
family enterprise which is non hazardous.
15. The legislature understands the value and importance of a child's health as he should not
get involved in any kind of hazardous or non hazardous work. This act in its full wave tries to
protect the health of child by not allowing him to get involved in any work.
16. Further, the act also makes it very clear through section 3 that the child should not help his
family in his school hours. The legislature understands the importance of education for a child
which is being guaranteed by part III of Islandian constitution through Article 21a, and owning
to this reason it has in a very strict sense has prohibited the child to work during his school hours.
Education is fundamental for the growth and development of the child. Though he can help the
family enterprise after school hour and in vacation which in no way will hamper his school
education.
17. The provisions included in the act rather promotes education than curbing it. It in all way
makes tries to fill up all the loopholes that the previous act had as the previous act did not
completely ban child labour as the child was allowed to work in any process or occupation which
is not mention in the schedule of the act. The schedule shall be omitted or added upon by a
notification.
Pramod Kumar Agarwal, Anil Chandra Pathak, A Socio Economic Analysis Of Child Labour In India 1 (1)
Lakshya: Journal of Science & Management, 107, 108 (2015).
64
65
S. Kailash, Z. Bupinder, Globalization, Development and Child Rights 71 (1st ed., 2006).
PAGE XI

IV. THE IMPUGNED ACT IS IN CONSONANCE WITH THE INTERNATIONAL INSTRUMENTS AND
PROVISIONS OF THE CONSTITUTION OF ISLANDIA.
1. The Child Labour (Prohibition and Regulation) Amendment Act is in consonance with the
different International Treaties and Conventions to which Islandia is a member. Further the
principle of Pacta Sunt Servanda66 had been promoted by prohibiting child labour below the age
of 14. Further a clear indication as to the working conditions of both the adolescent as well as the
children have been taken into consideration and a prohibited to work or be employed or help in
occupation and processes which are hazardous. Further it promotes various DPSP's of the
Constitution.
1. THE ACT IS IN CONSONANCE WITH THE CONVENTION OF RIGHTS OF THE CHILD.
2.
The exception of the children under the age of 14 is in consonance with Article 32 67
wherein the age and working conditions are matted out. Further the Islandia is a party to the
convention but has an exception or reservation as the age and conditions of working. In this case
the Government has utilised such an reservation with an regulatory plans a to sudden inspections
and increase in the fine and bringing parents under the child labour law has brought in more
accountancy of the parents engaging children. Further the ILO conventions have also been taken
into consideration before arriving to this conclusion.
2. THE ACT IS IN CONSONANCE WITH THE DPSP'S OF THE CONSTITUTION.
3.
The impugned Act has promoted various DPSP's of the Constitution by promoting
education for free and compulsory to the children under 14 years of age. Further considering the
socio-economic fabric of the country and taking articles of the constitution68, it is drawn that the
law so passed is constitutionally valid and promoted constitutional and fundamental rights as to
health and education.
66
Article 26, Vienna Convention on Law of Treaties.
67
United Nations Convention on Rights of the Child.
68

PAGE XII

PRAYER
In the light of the issues raised, arguments advanced and authorities cited, the respondent most
humbly and respectfully pray and request the Honble court :
1) TO DISMISS THE WRIT PETITION.
2) TO UPHELD
THE CONSTITUTIONALITY OF THE EXCEPTION UNDER SECTION
3(2)
OF THE
CHILD LABOUR ( PROHIBITION AND REGULATION) AMENDMENT ACT.
3) TO GRANT ANY OTHER RELIEF WHICH THE HONBLE COURT MAY DEEM THINK FIT IN THE
EYES OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
All of which is respectfully submitted and for such act of kindness the Respondent shall be
duty bound as ever pray.
Sd/(COUNSEL FOR RESPONDENT)
PAGE XIII

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THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016

MEMORIAL ON BEHALF OF THE PETITIONER

THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016

ORIGINAL WRIT JURISDICTION

W.P. (CIVIL) NO. ....... OF 2016

~ MEMORIAL ON BEHALF OF THE RESPONDENT ~

THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016

LIST OF ABBREVIATION ................................................................................................................... 3

NEW AMENDMENT IS NOT VIOLATING ANY FUNDAMENTAL RIGHTS . .............................. I

2.EXISTENCE OF ALTERNATIVE REMEDY................................................................................... I

IS IN CONSONANCE WITH THE INTERNATIONAL INSTRUMENTS AND

THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016

All India Record

Bachpan Bachao Andolan

Balak Bachao Samiti

Convention on Rights of the Child

International Covenant on Economic and Cultural Rights

Universal Declaration of Human Rights

International Covenant on Civil and Political Rights

Directive Principles of State Policy

Child Labour (Prohibition and Regulation) Act

International Labour Organisation

Ministry of Labour and Employment

Supreme Court Cases

Supreme Court Reports

United States of America

United Nations Convention on Rights of the Child

World Wide Web

THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016

Ashok Kumar Thakur v. Union of India & Ors., (2008) 6 SCC 1.

Ashuthosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.

Avinash Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726.

Avinash Mehrotra v. Union of India (Supreme Court W.P No. 483 of

Baburao v. State of Bombay Housing Board, AIR 1954 SC 153.

BALCO Employees Union (Regd.) v. Union of India, (2002) 2 SCC 333.

Chanan Singh v. Registrar. Co-op Societies, AIR 1976 SC 1821.

D.S. Nakara and Ors. v. Union of India, AIR 1983 SC 130.

Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457.

Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC

Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618.

Francis Coralie v. Union Territory Of Delhi, AIR 1994 SC 1844.

Gopi Chandra v. Delhi Administration, AIR 1959 SC 609.

Guruvayur Devaswom Managing Committee v. C K Rajan and Ors. (2003)

Harishankar Bagla v. State of Madhya Pradesh, AIR 1954 SC 466.

HMT Ltd v. Mudappa, AIR 2007 SC 1106.

In Re. Delhi Laws Act , AIR 1951 SC 332.

Jyoti Pershad v. Administrator, Union Territory of Delhi, AIR 1961 SC

Kanubhai v. State of Gujrat, AIR 1987 SC 1159.

THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016

Kapan v. Jagmohan, AIR 1981 SC 126.

Kewal Singh v. Lajvanti AIR 1980 SC 161.

LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811.

M S Booth Educational Trust v. State of Gujrat, AIR 2000 Guj 160.

Mahesh Chandra v. Regional Manager, U.P. Financial Corporation, AIR

Maneka Gandhi v. Union of India, AIR 1978 SC 597.

Municipal Corporation of Delhi v. Birla Cotton Mills, AIR 1968 SC 1232.

Om Kumar v. Union of India, AIR 2000 SC 3689.

Om Narain Agarwal v. Nagar Palika, Shahjahanpur, AIR 1993 SC 1440.

R.S. Joshi v. Ahit Mills Limited 1977 (40) STC 497.

Ramjilal v. Income Tax Officer, AIR 1951 SC 97.

S.G. Jaisinghani v. Union of India and Ors., [1967] 2 SCR 703.

Shiva Manjundappa v. State of Karnataka, AIR 1982 SC 231.

State of WB v. Anwar Ali Sarkar, AIR 1952 SC 75.