P. School of Law - Kiit University

TEAM CODE: P-
THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016

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 PETITIONER ~

PAGE 1
THE

MEMORIAL ON BEHALF OF THE PETITIONER
TABLE OF CONTENTS
LIST OF ABBREVIATIONS .................................................................................................................. 4
INDEX OF AUTHORITIES ................................................................................................................... 5
STATEMENT OF JURISDICTION ........................................................................................................ 11
STATEMENT OF FACTS ................................................................................................................... 12
HISTORY OF ISLANDIA ............................................................................................................ 12
THE UNDISPUTED TRUTH OF CHILD LABOUR IN ISLANDIA ..................................................... 12
BRINGING ABOUT THE AMENDMENT ACT ............................................................................... 12
FILING OF THE PUBLIC INTEREST LITIGATION ......................................................................... 13
STATEMENT OF ISSUES ................................................................................................................... 14
SUMMARY OF ARGUMENTS ............................................................................................................ 15
ARGUMENTS ADVANCED .................................................................................................................. I
I. THE WRIT PETITION IS MAINTAINABLE IN THE INSTANT CASE.................................................. I
1. THE PETITIONER HAS LOCUS STANDI IN THE INSTANT CASE ................................................... I
2. BASIC STRUCTURE OF THE CONSTITUTION HAS BEEN VIOLATED ........................................... I
3. THE COURT CAN REVIEW A POLICY DECISION ON VIOLATION OF FUNDAMENTAL RIGHTS .. II
4. ALTERNATIVE REMEDY NOT A BAR:.................................................................................... II
II. THE FUNDAMENTAL RIGHT OF EQUALITY UNDER ARTICLE 14 OF THE CONSTITUTION OF
ISLANDIA HAS BEEN VIOLATED IN THE INSTANT CASE. ............................................................... III
1. EQUALITY BEFORE LAW AS GUARANTEED UNDER ARTICLE 14. ........................................... III
2. CONSTITUTIONAL REQUIREMENT FOR VIOLATION OF ARTICLE 14: ....................................... IV
3. THE AMENDMENT SECTIONS FAIL TO NOTE OF THE CLASS DIFFERENCE BETWEEN ................. V
ADULTS AND CHILD:
................................................................................................................. V
4. THE AMENDMENT IS ARBITRARY IN NATURE. ....................................................................... VI

5. DISTINCTION MADE ON THE BASIS OF FAMILY ENTERPRISE IS ARBITRARY .......................... VII
III. THE RIGHT OF LIFE AND PERSONAL LIBERTY UNDER ARTICLE 21 OF THE CONSTITUTION OF
ISLANDIA HAS BEEN VIOLATED BY THE IMPUGNED ACT. ........................................................... VIII
1. RIGHT TO LIFE WITH DIGNITY OF THE CHILDREN IS HAMPERED BY THE IMPUGNED ACT: .... VIII
2. THE PROCEDURE ESTABLISHED UNDER THE ACT IS NOT FAIR, JUST AND REASONABLE: ........ X
3. THE AMENDMENT ACT IS IN VIOLATION OF ARTICLE 21 A OF THE CONSTITUTION OF ......... XI
ISLANDIA. ................................................................................................................................ XI
IV. THE CHILD LABOUR (PROHIBITION AND REGULATION) AMENDMENT ACT, 2016 IS NOT IN
CONSONANCE WITH VARIOUS INTERNATIONAL INSTRUMENTS AND CONSTITUTIONAL
PROVISIONS OF ISLANDIA. ......................................................................................................... XIII
1. THE IMPUGNED ACT DOES NOT PROMOTE DPSP................................................................ XIII
PAGE 2

2. THE ACT IS NOT IN CONSONANCE WITH INTERNATIONAL INSTRUMENTS. .......................... XIII

PRAYER.......................................................................................................................................... XV
PAGE 3

LIST OF ABBREVIATIONS
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 4

INDEX OF AUTHORITIES
CASE LAWS
Indian Supreme Court Cases
SL. No
Case Law
Pg. No
1.
A.R Antulay v. R.S Nayak, AIR 1992 SC 1701.
VIII
2.
Ajay Hasia v. Khalid Mujib Sehravardhi, AIR 1981 SC 487.
III
3.
Ashok Kumar Thakur v. Union of India & Ors. (2008) 6 SCC 1.
XII
4.
Ashok v. Union of India, AIR 1997 SC 2298.
VIII
5.
Avinash Mehrotra v. Union of India, (Supreme Court W.P No. 483 of
XI
2004).
6.
Center for Public Interest Litigation v. Union of India, (2012) 3 SCC 104.
II
7.
ChitranjitLal v. Union of India, AIR 1951 SC 41.
IV
8.
Coimbatore Dist. Central Co. Op. Bank v. Employees Assn., (2007) 4
VII
SCC 696.
9.
Dalpat Rai Bhandari v. President of India, AIR 1993 SC 1.
10.
Danial Latiff v. Union of India, (2001) 7 SCC 740.
IX
11.
Delhi Development Horticulture Employees Union v Delhi Administration,
VIII
AIR 1992 SC 789.

12.
Dolly Chandra v. Chairman Jee, (2005) 9 SCC 779.
IX
13.
E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555.
III
14.
Fertilizer Corporation Kamgar Union v. Union of India, (1981) 1 SCC 568.
II
15.
Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors,
VIII
(1981) 1 SCC 608.

16.
Gaurav v. Union of India, AIR 1990 SC 292.
XIII
17.
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514.
IX
18.
Hussainara Khatoon and Ors. v. Home Secretary State of Bihar, (1980) 1
VIII
SCC 81.
19.
I.R Coelho v. State of Tamil Nadu, (1998) 7 SCC 550.
20.
Indra Sawhney v. Union Of India And Others, AIR 1993 SC 477.
III
PAGE 5

21.
J P Unnikrishnana vs. State of Andhra Pradesh, 1993 SCC (1) 645.
XI
22.
Jayant Achyut Sathe v. Joseph Bain DSouza, (2008) 13 SCC 547.
II
23.
K.K Konchinni v. State of Madras, AIR 1959 SC 725.
II
24.
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
25.
Laxmi Khandsari v. State of UP, AIR 1981 SC 873.
IV
26.
M. C. Mehta v. Union of India, 1992 (3) SCC 256.
VIII
27.
M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544.
VIII
28.
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
VIII
29.
Mohini Jain v. Union of India (1992)3 SCC 666.
XI
30.
Nandini Sundar v. State of Chattisgarh, (2011) 7 SCC 547.
II
31.
Om Narain v Nagar Palika, AIR 1993 SC 1440.
VI, III
32.
Peoples' Union for Democratic Rights v. Union of India, AIR 1982 SC
IX
1473.
33.
Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526.
VIII
34.
Premium Granites v. State of Tamil Nadu, AIR 1994 SC 2233.
IV
35.
R.D Upadhyay v. State of Andhra Pradesh & Ors. , AIR 2006 SC 1946.
XI
36.
R.S. Joshi v. Ahit Mills Limited 1977 (40) STC 497.
37.
Raja Shri Shivrai Pratishthan v. State of Maharashtra, (2008) 10 SCC 799.
II
38.
Rameshwar Prasad v. Union of India, AIR 2006 SC 212.
II
39.
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh 1986
Supp. SCC 517.

40.
S.G. Jaisinghani v. Union of India and Ors., (1967) 2 SCR 703.
VI
41.
S.P Gupta and others v. Union Of India, 1981 Supp. SCC 87.
42.
S.R Bommai v. Union of India, (1994) 3 SCC 2.
II
43.
Sharma Transport v. Government of A.P., AIR 2002 SC 332.
IV, VII
44.
Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1.
45.
Soma Chakravarty v. C.B.I., (2007) 5 SCC 403.
IV
46.
State of Bombay v. United Motors Ltd., AIR 1953 SC 252.
II
47.
State of J&K v. Triloki, (1974) 1 SCC 19.
IV
48.
State of Punjab and Others v. Mohinder Singh, AIR 1997 SC 1225.
IX
49.
State of Tamil Nadu v. K. Shyam Kumar, (2011) 8 SCC 737.
IV
PAGE 6

50.
Subhash Kumar v. State of Bihar, AIR 1991 SC 420.
VIII
51.
Sunil Batra v. Delhi Admn. (1978) 4 SCC 494.
VIII
52.
Tinkushia Electric Supply Co. v. State Of Assam, AIR 1990 SC 123.
III
53.
Twyford Tea Co. Ltd. and Another v. State Of Kerala and others, 1970 AIR
IV
SC 1133.
54.
Union of India v. G. Ganayutham, (1997) 7 SCC 463.
VII
55.
Union of India v. R Sarangapani, AIR 2000 SC 2163.
III
56.
Venkateshwara Theatre v. State of Andhra Pradesh and Others, 1993 AIR
VI
SC 1947.
57.
Virendar Gaur v. State of Haryana, 1995 (2) SCC 577.
VIII
58.
Vishal v. Union of India, AIR 1990 SC 1412.
XIII
59.
Waman Rao v. Union of India, (1981) 2 SCC 362.
II
Indian High Court Cases

60.
Brig Gurdian Singh Ulban v. Union of India 1997 AIHC 886 (DEL).
61.
Indo-Swiss Synthetic Gum Manufacturing Co. Ltd v. Government of Tamil
IV
Nadu, AIR 1997 Mad 41.

62.
Param Lal Burman v. Ravi Kumar Sharma, AIR 2000 MP 299.
IX
63.
Sathyavan Kottaarakara v. State of Kerla, AIR 1997 Ker 133.
XIII
U.S Supreme Court Cases

64.
Gulf Ry. v. Ellis (1897) 163 US 150.
IV
65.
Missouri Pacific Railway Co. v. Humes (1885) 115 US 512.
IV
66.
Morey v. Doud, (1956) 118 US 356.
III
67.
Munn v. Illinois 24L Ed 77:94 US 113 (1877).
VIII
Pakistan Supreme Court Cases

68.
Benazir Bhuto v President of Pakistan, PLD 1998 SC 388.
VIII
69.
Shehla Zia v. WAPDA, PLD 1994 SC 693.
VIII
U.K Case Laws

70.
Associated Provincial Picture House v. Wednesbury, (1948) KB 223.
VII
71.
Council of Civil Services Union v. Minister of Civil Services, (1984) 3 All
VII
PAGE 7

ER 935 (HL).
LEGISLATIONS
1.
Child Labour (Prohibition and Regulation) Act, 1986
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 51
BOOKS
1.
Aoife Nolan, Children's Socio-Economic Rights, Democracy and the Courts, (6th ed.,
2011).
PAGE 8

2.
D.D Basu, Commentary on the Constitution of India, (8th ed., Vol. 1, 2014).
3.
4.
5.
Dr. Nirmal Kanti Chakrabarti, Law and Child, (2nd ed., 2011).
6.
Franziska Humbert, The Challanges of Child Labour in International Law, (1st ed.,
2009).
7.
Myron Weiner, Asha Bajpei, Born Unfree: Child Labour, Education and the State in
India, (1st ed., 2006).
8.
Trevor Buck, International Child Law, (1st ed., 2005).
9.
V.N Shulka's Constitution of India, 49 (M.P Singh, 12th ed., 2013).

ARTICLES & JOURNALS
1.
Angela Duger, Jacqueline Bhabha, FXB Center For Health & Human Rights, Harvard
University, available at https://fxb.harvard.edu/flawed-new-proposals-to-reform-childlabor-law-in-india/, last seen on 7/10/2016.
2.
Committee on the Rights of the Child, General comment No. 17 (2013) on the right of
the child to rest, leisure, play, recreational activities, cultural life and the arts (art. 31),
Adopted by the Committee at its sixty-second session (14 January 1 February 2013).
See UNESCO, Education for the twenty-first century: issues and prospects (Paris,
1998).
3.
Komal Ganotra, Failing our Children, 51 (35) Economic and Political Weekly 19, 20
(2016).
4.
Policy paper on the Child Labour (Prohibition and Regulation) Amendment Bill, 2016
and legal protection to children engaged in various forms of Labour in India, Bachpan
Bachao Andolan.
5.
Sudarshan R, Kaur R., The tobacco industry and womens employment: Old concerns
and New Imperatives, 42 (4) Indian Journal of Labour Economics (1999).
6.
Vijayashri Sreepati, Constitutional Amendment making the right to education a

fundamental right, 9 International Journal of Constitutional Law 148, 149 (2008).
PAGE 9

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.
Centres for disease Control and Prevention, How Child are different from adults?,
February 2015, available at http://www.cdc.gov/childrenindisasters/differences.html,
last visited 13/10/2016.
2.
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,
last
seen
on
12/10/2016.
3.
Efroymson D., Tobacco and poverty: observations from India and Bangladesh 44-47,
Mumbai
(2nd
ed.,
2003).
available
at
http://www.pathcanada.org
/library
docs/tobacco_poverty_2nd_edition.pdf, last seen 12/10/2016.

4.
Indian Vakil, Child Labour (Prohibition & Regulation) Amendment Act 2016- Failing
their Future ?, available at https://jashvaidya.wordpress.com/tag/child-labouramendment-act-2016/ , last seen on 10/10/2016.
5.
Oxford online dictionary, available at https://en.oxforddictionaries.com/definition/help,

last seen 13/10/2016.
6.
Standing Committee on Labour, Lok Sabha, The Child Labour (Prohibition and Regulation)
Amendment Bill 2012.
7.
WHO Report, Children are not little adults, July 2008 available at www.who.int/ceh,
last seen 12/10/2016.
PAGE 10

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 11

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 12

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 13

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

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 14

SUMMARY OF ARGUMENTS
ISSUE I. THE WRIT PETITION IS MAINTAINABLE IN THE INSTANT CASE.
The writ petition filed under 32 of the Constitution of Islandia by Mr Macoca, a child rights
activist is maintainable as he has the locus standi to file the same. All the requirements of
instituting PIL have been filed in the instant case. First, there is a violation of fundamental rights.
Second, the petitioner represents the rights of the public as he is a Child Rights Activist. Third,
the petitioner has come to this courts with clean hands. Moreover, an alternative remedy is not a
bar for filing a PIL to the Supreme Court under Article 32.
ISSUE II. THE FUNDAMENTAL RIGHT OF EQUALITY UNDER ARTICLE 14 OF THE CONSTITUTION
OF ISLANDIA HAS BEEN VIOLATED IN THE INSTANT CASE.
The provisions in the Amendment Act are in violation of Article 14 as they are discriminatory in
nature. The law provides for equal treatment of unequal persons and hence is discriminatory as
there is an absence of rational relation to the object intended to be achieved by the law.
Moreover, the children are deprived from being afforded equal opportunity arbitrarily.
ISSUE III. THE RIGHT
OF
LIFE
AND
PERSONAL LIBERTY UNDER ARTICLE 21
OF THE
CONSTITUTION OF ISLANDIA HAS BEEN VIOLATED IN THE INSTANT CASE.

The provision allowing a child under the age of 14 to help his family and to work in the audiovisual industry digresses the basic tenant of the Constitution. Article 21 of the Constitution
guarantees protection of health of the children against abuse, opportunities and facilities for
children to develop in a healthy manner and in condition of freedom and dignity, educational
facilities. In the instant petition, the right of the child to education is being hampered as the
provision allows children to work only outside their school hours and during vacations, but
without a specific monitoring mechanism the practicality of this clause. Hence, the provisions
are in violation of Article 21.
ISSUE IV. THE IMPUGNED ACT
IS NOT IN
CONSONANCE
WITH THE
INTERNATIONAL
INSTRUMENTS AND PROVISIONS OF THE CONSTITUTION OF ISLANDIA IN THE INSTANT CASE.

The Amendment Act is in contravention to the directive principles of state policy as well as
many international instruments including the International Covenant on Economic, Social and
Cultural Rights, United Nations Declaration of Human Rights and UNCRC.
PAGE 15

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

1. The writ petition filed under 32 of the Constitution of Islandia1 by Mr Macoca, a child right's
activist is maintainable as he has the locus standi to file the same. In furtherance the writ is
maintainable as it violates various fundamental rights under Part III of the constitution which is a
basic structure of the Constitution.2
1. THE PETITIONER HAS LOCUS STANDI IN THE INSTANT CASE:
2.
It is humbly submitted that the Apex court held that test for determining the standing in
individual interest cannot be strictly applied to public interest.3 The Hon'ble court has expanded
the concept of Affected party in the cases of public interest. All the requirements of instituting
PIL have been filed in the instant case. First, there is a violation of fundamental rights. Second,
the petitioner represents the rights of the public as he is a Child Rights Activist 4. Third, the
petitioner has come to this courts with clean hands. The impugned Act enacted by the legislature
on one hand prohibits child labour but on the other, allows for the same which come under the
purview of Article 13.5 Therefore, the Honble Supreme court is competent to decide the legality
of the Amendment Act under Art. 32.
2. BASIC STRUCTURE OF THE CONSTITUTION HAS BEEN VIOLATED:
3.
It is submitted that Part III of the Constitution which deals with Fundamental rights is
regarded as the basic structure of the Constitution6. The doctrine of basic structure not only
applies against the amendments under the exercise of constituent power7
1
2
but also against
Constitution of Islandia, Pari Materia to the Constitution of India ( Herein after referred as Constitution).
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
3 S.P Gupta and others v. Union Of India, 1981 Supp. SCC 87; See M.C Mehta v. Union of India, (1987) 1 SCC,
Rural Litigation and Entitlement Kendra v. State of Uttar Pradesh 1986 Supp. SCC 517.
4
17, Moot Proposition, THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETIITON, 2016 (Herein
after referred as Moot Proposition).
5
Art. 13 (3), the Constitution of India; Brig Gurdian Singh Ulban v. Union of India 1997 AIHC 886 (DEL) ; Dalpat
Rai Bhandari v. President of India, AIR 1993 SC 1; D.D Basu, Commentary on the Constitution of India, 713-714
(8th ed., Vol. 1, 2014).
6
I.R Coelho v. State of Tamil Nadu, (1998) 7 SCC 550.
Smt. Indira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1.

PAGE I

exercise of legislative8 and executive power9. Therefore, the impugned Act is within the ambit
of application of basic structure.
3. THE COURT
CAN REVIEW A POLICY DECISION ON VIOLATION OF
FUNDAMENTAL
RIGHTS.
4.
The Honble Supreme Court can intervene in a policy question as the court has in catena
of cases10 including the recent Nandani Sundar case11 and 2G Spectrum case
12
which affirmed
the application of judicial review in violation of fundamental right. Moreover, this Honble court
has gone to the extent of saying that the policy framed should not only be in violation of law but
should be in accordance with law. In the instant case there is a clear violation of Article 21 and
Article 14 of the Islandian Constitution and hence the court ought to entertain this writ petition.
4. ALTERNATIVE REMEDY NOT A BAR:
5.
When there is a well-founded allegation that fundamental right has been infringed,
alternative remedy is no bar for entertaining writ petition and granting relief
13
. The mere
existence of an adequate alternative remedy cannot per se be a good and sufficient ground for
dismissing the petition under Art. 32.14 Thus, the petitioner humbly submits before the Honble
Court that the writ petition is maintainable in the present case.
Waman Rao v. Union of India, (1981) 2 SCC 362.
S.R Bommai v. Union of India, (1994) 3 SCC 2 ; Rameshwar Prasad v. Union of India, AIR 2006 SC 212.
10
Raja Shri Shivrai Pratishthan v. State of Maharashtra, (2008) 10 SCC 799, Pg. 801-802; See Jayant Achyut Sathe
v. Joseph Bain DSouza, (2008) 13 SCC 547 at Pg 563, Fertilizer Corporation Kamgar Union v. Union of India,
(1981) 1 SCC 568 at Pg 584.
11
Nandini Sundar v. State of Chattisgarh, (2011) 7 SCC 547.
12
Center for Public Interest Litigation v. Union of India, (2012) 3 SCC 104.
13
State of Bombay v. United Motors Ltd., AIR 1953 SC 252.
14
K.K Konchinni v. State of Madras, AIR 1959 SC 725.
PAGE II

II. THE FUNDAMENTAL RIGHT
OF
EQUALITY
UNDER
ARTICLE 14
OF THE
CONSTITUTION
OF

1. It is humbly submitted before the Hon'ble Court that Sections 3 and 3A of the Child Labor
(Prohibition and Regulation) Amendment Act, 2016 is in violation of Article 14 of the
constitution which is the basic structure of Constitution.15 Sections 3 and 3A of the Amendment
Act is in violation of Article 14 as it fails to recognize that children form a different class
altogether and cannot be grouped with adults. In furtherance, the exceptions to Section 3
discriminate on the basis of opportunity afforded without any legitimate grounds.
1. EQUALITY BEFORE LAW AS GUARANTEED UNDER ARTICLE 14.
2.
The Constitution of Islandia envisages "Equal Protection of Law" under Article 14 in
equal circumstances.16 Equality is a basic structure, and any treatment of equals unequally or of
unequal's equally shall be a violation of the basic fabric of the Constitution.17 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 treatment18. Equal protection means the absence of any
"arbitrary19 discrimination" by the laws themselves or their administration.20 None should be
favored21 and none should be placed under any disadvantage, in circumstances that do not admit
of any reasonable justification for a different treatment. As no two human beings are equal in all
respects, the same treatment to them in every respect would result in unequal treatment.22The
question of discrimination can arise only or between persons who are similarly, if not identically
situated.23 Article 14 would be violated if two unequal were treated as equal.24 Therefore, the
15
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225; See Smt. Indira Nehru Gandhi v. Raj Narain, 1975
Supp. SCC 1.
16
Tinkushia Electric Supply Co. v. State Of Assam, AIR 1990 SC 123.
17
Indra Sawhney v. Union Of India And Others, AIR 1993 SC 477.
18
D.D Basu ,Commentary on the Constitution of India, 1390 (8th ed., Vol. 2, 2014).
19
E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555, See Ajay Hasia v. Khalid Mujib Sehravardhi, AIR 1981
SC 487.
20
Supra 18, at 1383.
21
Morey v. Doud, (1956) 118 US 356.
22
V.N Shulka's Constitution of India, 49 (M.P Singh, 12th ed., 2013).
23
Union of India v. R Sarangapani, AIR 2000 SC 2163.
24
Om Narain v. Nagar Palika, AIR 1993 SC 1440.

PAGE III

Constitution allows for different treatment to unequals as it only prohibits discrimination

amongst the equals25.
2. CONSTITUTIONAL REQUIREMENT FOR VIOLATION OF ARTICLE 14:
3.
The requirement of the validity of a law with reference to Art. 14 is that it should not be
arbitrary and classification should be reasonable26. A law, defined so under Art. 13 can be
challenged under Art.14 on the grounds of being discriminatory or arbitrary27. Moreover,
through judicial interpretation it has been held that there should be no discrimination between
one person and another if as regards the subject-matter of the legislation their position is same28,
or substantially similar.29 The reasonableness of a classification would thus be dependent upon
the purpose for which classification is made. There should be a relation between the
differentiations to the object of the classification. If there are no such relations, the reasonable
classification would fail and even if different subjects are equally treated there must be some
basis on which the differences have been equalized otherwise discrimination will be found.30
4. A classification is reasonable when it is not an arbitrary selection31 but rests on differences
pertinent to the subject in respect of which classification is made.32 irrationality. For the purpose
of Art. 14, the expression arbitrarily means in an unreasonable manner, as fixed or done
capriciously or at pleasure.33
5.The classification or differentia adopted as the basis of classification must have a rational or
reasonable nexus with the object to be achieved.34
25
Indo-Swiss Synthetic Gum Manufacturing Co. Ltd v. Government of Tamil Nadu, AIR 1997 Mad 41.
26
Soma Chakravarty v. C.B.I., (2007) 5 SCC 403.
27
Premium Granites v. State of Tamil Nadu, AIR 1994 SC 2233.
28
ChitranjitLal v. Union of India, AIR 1951 SC 41.
29
State of J&K v. Triloki, (1974) 1 SCC 19 at 31.
30
Twyford Tea Co. Ltd. and Another v. State Of Kerala and others, 1970 AIR SC 1133.
31
Gulf Ry. v. Ellis (1897) 163 US 150.
32
Missouri Pacific Railway Co. v. Humes (1885) 115 US 512.
33
Sharma Transport v. Government of A.P., AIR 2002 SC 332, See State of Tamil Nadu v. K. Shyam Kumar,
(2011) 8 SCC 737.
34
Laxmi Khandsari v. State of UP, AIR 1981 SC 873.

PAGE IV

3. THE AMENDMENT SECTIONS FAIL TO NOTE OF THE CLASS DIFFERENCE BETWEEN

ADULTS AND CHILD:
6.
In the present case, Section 3 of the Amendment Act35 states that a child under the age of
14 is allowed to help in a family enterprise if the nature of such work does not include working
on inflammable substances or explosives, in mines or in hazardous processes. Similarly, these
restrictions of hazardous occupations are also placed upon the adolescents, i.e. children between
the ages of 14 to 18.36
7. However, the Act does not provide a list of processes that are classified as hazardous
processes and depends on the schedule37 provided under Factories Act, 1948. This is a major
shift from the previous legislation which contained a list of 18 occupations and 65 processes to
be considered as hazardous in specific reference with the development of a child. It is imperative
to note that the Factories Act is for the adult workers and its regulatory framework is applicable
only to young persons and adults and therefore this approach cannot be applicable only to a law
for children. In doing so, the architect of the legislation has failed to recognize children as a
separate class with more specific needs of development and protection.
8. Article 15 of the Constitution affords a special status to children by recognizing them as a
vulnerable class which needs special care and protection. The amendment legislation has failed
to take into account, the needs of this venerable group. The clubbing together of hazardous
processes that are declared so for adults to be applicable to children show that needs of the
specific class are not taken into account. The exploitation and cruelty, in some cases, of the
employers can affect health, safety and morals of the adolescents albeit working in a nonhazardous occupation.38
9. The Test of Reasonable Classification says that the classification must be based upon
intelligible differentia that distinguishes persons or things that are grouped from others that are
left out of the group. Putting the definition of "Hazardous Processes" and relying on its validity
from the Factories act, 1948 for all class of people i.e Adults, Adolescent and child, is an
unreasonable classification as what is hazardous for adults would be hazardous for child as well
35
The Child Labour (Prohibition and Regulation) Amendment Act, 2016.
36
15, Moot Proposition.
37
The First Schedule , The Factories Act, 1948; See 17, Moot Proposition.
38
Standing Comittee on Labour, Lok Sabha, The Child Labour (Prohibition and Regulation) Amendment Bill 2012,
Chapter IV at 4.4.
PAGE V

but what would not be hazardous for an adult might be hazardous for a child. Moreover, this
differentia must have a rational relation to the object of classification.39 The object of the Act is
"to lay down a procedure to decide modifications to the schedule of banned occupations or
processes and to regulate the condition of work of children where they are not prohibited from
working".40 With relation to this object, the legislature was to take into account the specific needs
of the class and prohibit a list of occupations and processes that are harmful specifically for the
health and development of a child.
10. It has been repeatedly held that a law providing for equal treatment of unequal objects,
transactions or persons would be condemned as discriminatory if there is an absence of rational
relation to the object intended to be achieved by the law. 41 The definition of hazardous given in
the Schedule pertains to the corresponding provision in the Factories Act 42 wherein hazard has
been defined from the point of view of its implications on adult factory workers and from the
point of view of environmental pollution risks.
11. Here, the sections fails to recognize children and adolescents as a separate class than that of
adult workers. Children have different specific needs for their holistic mental and physical
development than that of adults.43 Affording them special treatment as that of adults is therefore
necessary to avoid discrimination.
4. THE AMENDMENT IS ARBITRARY IN NATURE.
12. Every State action must be informed by reason and it follows that an act uninformed by
reason, is arbitrary.44An 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.
39
Om Narain v Nagar Palika, AIR 1993 SC 1440.
40
Statement of Objects and Reasons, The Child Labour (Prohibition and Regulation) Act, 1986.
41
Venkateshwara Theatre v. State of Andhra Pradesh and Others, 1993 AIR SC 1947.
42
Supra 18.
43
WHO Report, Children are not little adults, July 2008 available at www.who.int/ceh, last seen 12/10/2016. See
Centres for disease Control and Prevention, How Child are different from adults?, February 2015, available at
http://www.cdc.gov/childrenindisasters/differences.html, last visited 13/10/2016.
44
S.G. Jaisinghani v. Union of India and Ors., (1967) 2 SCR 703, pg. 18-19.
PAGE VI

13. Reasonableness as recognized by common law
45
and Indian law46 requires an action to be
free irrationality. For the purpose of Art. 1447, the expression arbitrarily means in an
unreasonable manner, as fixed or done capriciously or at pleasure.48
14. The exception added by way of limiting the scope of work for a child to family enterprise
serves no purpose as it includes the work a family member is doing with engagement of others.
The definition of family enterprise is, any work, profession, manufacture or business, with the
engagement of other persons.49 It is important to observe that the family member does not have
to be the occupier of the family enterprise. The nature of engagement with other persons is also
not specified.This clause on engagement with other persons in a wide range of activities
becomes a strong loop-hole for child labor trafficking. Therefore, creating such a distinction has
no meaning due to the wide ambit that it encompasses. This makes the law unreasonable and
arbitrary in nature.
15. Moreover, the word help has been used in reference to children under the age of 14. The
word help per the Oxford dictionary means "The action of helping someone to do something."50
However, in light of the absence of a monitoring system of a limit on working hours provided by
the legislature further adds to the uncertainty and arbitrariness created by the amended sections.
5. DISTINCTION MADE ON THE BASIS OF FAMILY ENTERPRISE IS ARBITRARY
16. Another facet of equality is that state should offer equal status and opportunity to all its
citizens as envisaged in the preamble of our constitution. Section 3 (2) (a) limits the opportunity
of a child to work only as a helper to his family members or in the family enterprise. This limits
his opportunity to learn and develop his skills to a specific field with no reference to his personal
inclination. There, the petition humbly submits to the Honorable Court that Sections 3 and 3A
are discriminatory in nature and thus in violation of Article 14. Hence, they should be struck off
as unconstitutional.
45
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).
46
Union of India v. G. Ganayutham, (1997) 7 SCC 463, at pg. 478-479; See Coimbatore Dist. Central Co. Op.
Bank v. Employees Assn., (2007) 4 SCC 696.
47
Article 14, the Constitution of Islandia.
48
Sharma Transport v. Government of A.P., AIR 2002 SC 332.
49
50
Oxford online dictionary, available at https://en.oxforddictionaries.com/definition/help, last seen 13/10/2016.

PAGE VII

III. THE RIGHT OF LIFE AND PERSONAL LIBERTY UNDER ARTICLE 21 OF THE CONSTITUTION
OF ISLANDIA HAS BEEN VIOLATED BY THE IMPUGNED ACT.
1. The right under Article 21 does not fit in a straight jacket formula and has been widely
interpreted by the judiciary.51 It is a fundamental right to live life52 with dignity.53
The
expression "dignity of the individual" finds specific mention in the Preamble to the Constitution
of India itself and is built into our constitutional culture itself. 54 The lack of clarity in the
Amendment act will give rise to child labour and thereby violating the fundamental right to
elementary education55 and shall have an toiling effect on the child's health.
1. Right to life with dignity of the children is hampered by the impugned Act:
2.
The word life assured in Art. 21 doesnt connote mere animal existence through life.56
The right to not be arbitrarily deprived of life is a universal right protected by international
instruments57 and its exercise is essential for all other human rights. The right under Article 21
is expansive and has a wide interpretation to the right to life and personal liberty. 58 Every
person enjoys the right to a wholesome environment, which is a facet of the right to life
guaranteed under Article 21.59It is basic right of all to live in a healthy environment.
51
Maneka Gandhi v. Union of India, (1978) 1 SCC 248, See M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC
544, Hussainara Khatoon and Ors. v. Home Secretary State of Bihar, (1980) 1 SCC 81, Sunil Batra v. Delhi Admn.
(1978) 4 SCC 494.
52
Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526, See Munn v. Illinois 94 US 113 (1877).
53
Francis Coralie Mullin v. Administrator, Union Territory of Delhi and others, (1981) 1 SCC 608
54
Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526.
55
Article 21 A, the Constitution of India.
56
Shehla Zia v. WAPDA, PLD 1994 SC 693, See Benazir Bhuto v President of Pakistan, PLD 1998 SC 388.
57
Article 3, UDHR, 1948; Article 6, ICCPR,1976; Article 9, International Convention on the Protection of the
Rights of all Migrant workers and Members of their families,1990; Article 6, Convention on the Rights of the
Child,1989; Article 7, United Nations Declaration on the Rights of Indigenous Peoples, 2007; Article 4, African
Charter on Human Rights and Peoples Rights, 1981; Article 5, African Charter on the Rights and Welfare of the
Child, 1999; Article 1, American Declaration on the Rights and Duty of the Man,1948; Article 4, American
Convention on Human Rights,1969; Article 5, Arab Charter on Human Rights,1994; Article 2, European
Convention on Human Rights, 1950; Article 2, Charter of fundamental rights of the European Union,2000.
58
Ashok v. Union of India, AIR 1997 SC 2298, See A.R Antulay v. R.S Nayak, AIR 1992 SC 1701, Delhi
Development Horticulture Employees Union v Delhi Administration, AIR 1992 SC 789.
59
Subhash Kumar v. State of Bihar, AIR 1991 SC 420, See M. C. Mehta v. Union of India, 1992 (3) SCC 256,
Virendar Gaur v. State of Haryana, 1995 (2) SCC 577.
PAGE VIII

3. The Child Labour (Prohibition and Regulation ) Amendment Act, 2016 was enacted by the
legislature with its objective to eradicate child labour and thereby prohibiting children under 14
years of age to be employed or permitted to work in any occupation or process.60 But the
Legislature by making the provision that a child under the age of 14 can help his family and can
work in audio-visual industry is the digressed the basic tenant of the Constitution.
61
The
provision in Section 3 of the Amended Act allows the children to help or work in family
enterprise and in audio-visual industry whereas there has been no limitation as to the working
hours, only which should be after school hours and during vacations.
4. Article 21 of the Constitution guarantees protection of health 62and strength of workers, men
and women and of the underage children against abuse, opportunities and facilities for children
to develop in healthy manner and in condition of freedom and dignity, educational facilities.63
Therefore, every action of the State must be guided by reason for public good and not by whim,
caprice, and abuse of power.64 The Act does not provide for the working condition or rather the
working hours of the children which thereby violates their right of fair conditions of labour65
5. This will lead to economic exploitation of the child. Further it has ignored that working
within the family set-up might be involved in a range of activities with diverse demands on the
child's physical and mental health. These include involvement in strenuous activities such as
embroidery work, carpet weaving, bangle making, beedi rolling66 all of which is hazardous for
such children of tender age. Further children shall be exposed to the threats of sexual , physical
and emotional exploitation.67
60
3, Child Labour (Prohibition and Regulation) Amendment Act, 2016.
61
Article 24, the Constitution of Islandia.
62
State of Punjab and Others v. Mohinder Singh, AIR 1997 SC 1225.
63
Danial Latiff v. Union of India, (2001) 7 SCC 740, See Param Lal Burman v. Ravi Kumar Sharma, AIR 2000 MP
299.
64
Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514, See Dolly Chandra v. Chairman JEE,
(2005) 9 SCC 779.
65
Peoples' Union for Democratic Rights v. Union of India, AIR 1982 SC 1473.
Sudarshan R, Kaur R., The tobacco industry and womens employment: Old concerns and New Imperatives, 42
(4) Indian Journal of Labour Economics 675, 685 (1999). See Efroymson D., Tobacco and poverty: observations
from India and Bangladesh 44-47, Mumbai (2nd ed., 2003). available at http://www.pathcanada.org /library
docs/tobacco_poverty_2nd_edition.pdf, last seen 12/10/2016.
66
67
Komal Ganotra, Failing our Children, 51 (35) Economic and Political Weekly 19, 20 (2016).
PAGE IX

6. Therefore the provision laid down in Section 3 A is violation of the right the child to have
proper development and health as it does not mandate the maximum working hours which shall
have adverse effect on the overall health of the child.68
2. THE PROCEDURE ESTABLISHED UNDER THE ACT IS NOT FAIR, JUST AND REASONABLE:
7.
The exception under Section 3A69 is impractical to differentiate between a child
employed after school hours and a child helping his/ her parent during school hours, and the
health implications for a child who would be working in any capacity after school.70
8. The definition of family enterprise is, any work, profession, manufacture or business, with
the engagement of other persons. It is pertinent to note that the family member does not have to
be the occupier of the family enterprise. The nature of engagement with other persons has also
not specified. Thus definition of family and family enterprises is flawed as it can be used as
colourable mean for child exploitation and without a monitoring authority to overlook exception
the essence of this amendment shall be lost.71
9. 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.72 Imperfection only does not expose an
Act or provisions to invalidity, despicably, that relating to socio-economic or affecting law and
order situation. It must be remembered that legislation is directed at practical problems. Socioeconomic mechanism is, highly, sensitive and complex. Many problems are singular and
contingent. Laws are not abstract proposition and do not relate to obstruct and are not to be
measured by abstract symmetry. Several legislation, particularly, in socio-economic matter are
essential and based on experiments or experience or what one made on trial and error method
and that it cannot provide for all possible situations and anticipate all possible abuses or misuses.
10. To start with, very few among the poorest families are entrepreneurs, in a position to
impart business skills to their minor children. Rather, they tend to be unskilled hourly wage
68
69
Supra 65.
70
Chapter IV at 4.2.
71
Indian Vakil, Child Labour (Prohibition & Regulation) Amendment Act 2016- Failing their Future ?, available at
https://jashvaidya.wordpress.com/tag/child-labour-amendment-act-2016/ , last seen on 10/10/2016.
72
R.S. Joshi v. Ahit Mills Limited 1977 (40) STC 497.

PAGE X

labourers or piece workers. In these families, children join their parents in physically demanding,
repetitive tasks to supplement the very meagre wages generated by adult workers.73
11. The determining of the hazardous occupation is that it is neither based on scientific
technology nor rooted in evidence. Neither it was arrived at in consultation of diverse group of
stake holder. The judgment of the Supreme Court and Central Technical Advisory Committee
has been undermined. Therefore the exception is arbitrary and unreasonable and lacks procedure
established by law.
3. THE AMENDMENT ACT IS IN VIOLATION OF ARTICLE 21 A OF THE CONSTITUTION OF
ISLANDIA.
12. 'Right to life' is the compendious expression for all those rights which the courts must
enforce because they are basic to the dignified enjoyment of life. It extends to the full range of
conduct which the individual is free to pursue. The right to education flows directly from right to
life. The right to life under Article 21 and the dignity of an individual cannot be assured unless it
is accompanied by the right to education. The State Government is under an obligation to make
endeavour to provide educational facility at all levels to its citizens.74
13. In the instant petition, the right of the child to education is being hampered as the
provision75 allows children to work only outside their school hours and during vacations, but
without a specific monitoring mechanism the practicality of this clause.76
14. The objective of the amendment of the Child Labour Act is also to ensure that all children
between six to fourteen years are in schools rather than at workplaces.77 Further all children
should be provided with education78, but the impugned Act allows child labour under parentage
and entertainment industry which will have an adverse effect on the economically backward
children.
73
Angela Duger, Jacqueline Bhabha, FXB Center For Health & Human Rights, Harvard University, available at
https://fxb.harvard.edu/flawed-new-proposals-to-reform-child-labor-law-in-india/, last seen on 7/10/2016.
74
Mohini Jain v. Union of India (1992)3 SCC 666, 12. See J P Unnikrishnana vs. State of Andhra Pradesh, 1993
SCC (1) 645.
75
3 A of the Child Labour (Prohibition and Regulation) Amendment Act, 2016.
76
Policy paper on the Child Labour (Prohibition and Regulation) Amendment Bill, 2016 and legal protection to
children engaged in various forms of Labour in India, Bachpan Bachao Andolan.
77
Chapter IV at 1.2.
78
R.D Upadhyay v. State of Andhra Pradesh & Ors. , AIR 2006 SC 1946.
PAGE XI

15. Further children at this tender age below 14 years mould themselves as the environment
teaches them to be, therefore there is a requirement of a safe environment79 for the education of a
child which is not hazardous in nature for a child's mental and physical health. In furtherance it is
the duty of the State to see that children suffer no harm in exercising their fundamental right and
civic duty.80
16. The Right to Education Act81 states that a child who may have missed school and hence
could not complete elementary education by age 14 shall be entitled to free education till
completion of elementary education even after completing 14 years of age. Allowing children
above 14 years of age work may push those who have not completed elementary education to
leave school and start working. This is in contradiction to the constitutional mandate 82 to provide
elementary education to all children.83
17. The most important fundamental right may be Article 21A84, which, in the larger interest of
the nation, must be fully implemented. Without Article 21A, the other fundamental rights are
effectively rendered meaningless. Education stands above other rights as one's ability to enforce
one's fundamental rights flows from one's education.85
18. Therefore the exception in the amendment Act by not providing a regulation will adversely
affect the education of the children who are from economically regressive section and finally
result into increase in dropouts.86
79
Avinash Mehrotra v. Union of India, (Supreme Court W.P No. 483 of 2004)
80
Ibid.
81
4, The Right Of Children To Free And Compulsory Education Act, 2009
82
Article 24, Constitution of India.
83
Komal Ganotra, Failing our Children, 51 (35)Economic and Political Weekly 19, 21 (2016).
84
Vijayashri Sreepati, Constitutional Amendment making the right to education a fundamental right, 9
International Journal of Constitutional Law 148, 149 (2008).
85
86
Ashok Kumar Thakur v. Union of India & Ors. (2008) 6 SCC 1.

Supra 83 at 22.
PAGE XII

IV. THE CHILD LABOUR (PROHIBITION AND REGULATION) AMENDMENT ACT, 2016 IS NOT IN
CONSONANCE
WITH
VARIOUS
INTERNATIONAL INSTRUMENTS
AND
CONSTITUTIONAL
PROVISIONS OF ISLANDIA.
1. The impugned Act is not in consonance with the different constitutional provisions of
Islandia, further it violates the rights guaranteed by the International Convention87 to which
Islandia is a ratified88 member.
1. THE IMPUGNED ACT DOES NOT PROMOTE DPSP.
2.
One aspect of this obligation has already been included as a Fundamental Right, in
Art.24, namely that the State must ensure that "No child below the age of 14 years is employed in
any factory or mine or in any other hazardous employment" and the obligation under art.39(f) is
wider by enjoining upon the state a positive duty to ensure opportunities to every child to
develop in a healthy manner and in conditions of freedom of dignity89.
3. Not mentioning the hour of work along with ambiguity in the term "help" invites child
exploitation with open arms which goes against the provision of Art. 39(f) of Islandian
Constitution. Moreover, It was also held that any exploitation of children in any form which has
a tendency to exploit them either physically, mentally or otherwise is objectionable and that the
State shall direct its policy towards securing that children are given opportunities to develop in a
healthy manner.90 In furtherance, the recommendations of the Supreme Court has been not taken
into consideration and thereby undermining it.91
2. THE ACT IS NOT IN CONSONANCE WITH INTERNATIONAL INSTRUMENTS.

4.
The impugned provision of the said Act does not provide for the working conditions as
well as the working hours for the children below the ages of 14 years. It leaves a wide scope of
economic exploitation of the child and thereby restricting him to enjoy his right to play92 and
87
The United Nations. Convention on the Rights of the Child. Treaty Series 1577 (1989): 3.
88
Article 73 1(b), Constitution of Islandia.
89
.Vishal v. Union of India, AIR 1990 SC 1412:.5,7,11, Gaurav v. Union of India, AIR 1990 SC 292.
90
Sathyavan Kottaarakara v. State of Kerala, AIR 1997 Ker 133.
91
Article 4, ILO Convention 182.
92
Article 31, United Nations Convention on Rights of the Child .

PAGE XIII

recreation. This right has been mandated by the Rights of the Child convention to which Islandia
is ratified member. Further the Convention also mandate compulsory elementary education93
which will be violated as the said Act does not provide for any mechanism to monitor that the
education of the child is not hampered.
5.The executive is bound by the treaty obligations
94
to which it is a ratified member and
thereby should harmonious follow in order to bring the Islandian laws at par.95 Further Article 10
enjoins state parties to protect young from economic exploitation and from employment in work
likely to hamper their moral, health, or their lives, or likely to hamper their normal
development.96
6. In terms of Article 32 of the UNCRC, which India ratified in 1992, all children have the
right to be protected from economic exploitation and from performing any work that is likely to
be hazardous or to interfere with the childs education, or to be harmful to the childs health or
physical, mental, spiritual, moral or social development. Over two decades later, Indias
children continue to face some of these hazards and thus the call for a more comprehensive
solution.97 Play and recreation are essential to the health and well-being of children and promote
the development of creativity, imagination, self-confidence, self-efficacy, as well as physical,
social, cognitive and emotional strength and skills as they contribute to all aspects of learning.98
Therefore the impugned exception is not in consonance with the International treaties.
93
Ibid at 28.
94
Article 51, the Constitution of India.
95
Magan Bhai Patel V. Union of India, (2003) 11 SCC 186, See D.K Basu V. State of West Bengal AIR 1997SC
610.
96
Myron Weiner, Asha Bajpei, Born Unfree: Child Labour, Education and the State in India, 47 (1st ed., 2006).
97
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. See International Covenant on Economic, Social and Cultural
Rights.
98
Committee on the Rights of the Child, General comment No. 17 (2013) on the right of the child to rest, leisure,
play, recreational activities, cultural life and the arts (art. 31), Adopted by the Committee at its sixty-second session
(14 January 1 February 2013). See UNESCO, Education for the twenty-first century: issues and prospects (Paris,
1998).
PAGE XIV

PRAYER
In the light of the issues raised, arguments advanced and authorities cited, the petitioner most
humbly and respectfully pray and request the Honble court :
1) TO ISSUE THE APPROPRIATE WRIT.
2) TO STRIKE DOWN 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 Petitioner shall be duty
bound as ever pray.
Sd/(COUNSEL FOR PETITIONER)
PAGE XV

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THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016

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THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016

A.R Antulay v. R.S Nayak, AIR 1992 SC 1701.

Ajay Hasia v. Khalid Mujib Sehravardhi, AIR 1981 SC 487.

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

Ashok v. Union of India, AIR 1997 SC 2298.

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

ChitranjitLal v. Union of India, AIR 1951 SC 41.

Coimbatore Dist. Central Co. Op. Bank v. Employees Assn., (2007) 4

Dalpat Rai Bhandari v. President of India, AIR 1993 SC 1.

Danial Latiff v. Union of India, (2001) 7 SCC 740.

Delhi Development Horticulture Employees Union v Delhi Administration,

AIR 1992 SC 789.

Dolly Chandra v. Chairman Jee, (2005) 9 SCC 779.

E.P Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

Fertilizer Corporation Kamgar Union v. Union of India, (1981) 1 SCC 568.

Francis Coralie Mullin v. Administrator, Union Territory of Delhi and Ors,

(1981) 1 SCC 608.

Gaurav v. Union of India, AIR 1990 SC 292.

Haryana Development Authority v. Dropadi Devi, (2005) 9 SCC 514.

Hussainara Khatoon and Ors. v. Home Secretary State of Bihar, (1980) 1

I.R Coelho v. State of Tamil Nadu, (1998) 7 SCC 550.

Indra Sawhney v. Union Of India And Others, AIR 1993 SC 477.

THE 1ST YOUTH VIBE NATIONAL MOOT COURT COMPETITION, 2016

J P Unnikrishnana vs. State of Andhra Pradesh, 1993 SCC (1) 645.

Jayant Achyut Sathe v. Joseph Bain DSouza, (2008) 13 SCC 547.

K.K Konchinni v. State of Madras, AIR 1959 SC 725.

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

Laxmi Khandsari v. State of UP, AIR 1981 SC 873.

M. C. Mehta v. Union of India, 1992 (3) SCC 256.

M.H. Hoskot v. State of Maharashtra, (1978) 3 SCC 544.

Maneka Gandhi v. Union of India, (1978) 1 SCC 248.

Mohini Jain v. Union of India (1992)3 SCC 666.

Nandini Sundar v. State of Chattisgarh, (2011) 7 SCC 547.

Om Narain v Nagar Palika, AIR 1993 SC 1440.

Peoples' Union for Democratic Rights v. Union of India, AIR 1982 SC

Prem Shankar Shukla v. Delhi Administration, (1980) 3 SCC 526.

Premium Granites v. State of Tamil Nadu, AIR 1994 SC 2233.