Critical Analytical Note

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Legality of Hyperlinks

Legality of Hyperlinks

I, for one, while writing, picture the intended audience and the beneficiaries (wishful thinking). This article talks about the legality of hyperlinks, taking a leap from trademarks we jump to the next but a slightly tangled trajectory of Intellectual property Law. Copyrights are about ideas, they say ideas are bullet proof but with all my […]

Preliminary decree in partition suit and role of Commissioner

Preliminary decree in partition suit and role of Commissioner

In a partition suit, preliminary decree is passed. An execution petition is filed by the plaintiff before the court. Court allows for it and appoints a commissioner in furtherance of the same. However, objections are filed against the execution of the decree and for the recall of preliminary decree, by the defendant. Court allows for […]

Filing for trademark in India

Filing for trademark in India

In today’s materialistic world where intangible standards of quality such as the goodwill and the brand value of a certain product matter than the tangible quality of the product itself, when the common folk, the youth, dances to the tunes of wakhra swag shunning the idea of running after the brand tags but savagely contradicting […]

Material alterations to a Cheque

Material alterations to a Cheque

We received multiple requests to consider doing a post on material alterations to a Cheque than confining ourselves to just alterations in the signature. In this post we look at various issues that arise out of altering a Cheque…let’s get started! What constitutes material alteration of a Cheque once it has been signed? What changes […]

Cheque bounce Case (Altered presumption of acquittal by sessions court)

Cheque bounce Case (Altered presumption of acquittal by sessions court)

Now let’s alter the presumption. Presumption here is that Sessions court has acquitted the individual after he was convicted by the trial court. In case of acquittal by session court, section 378 of CrPC will come into play. Under sub-section 4, a private individual may by an application made to HC ask for grants special leave […]


Syrian Ceasefire


Last week, Russia and the United States agreed to hold ceasefire between the rebel groups and the Syrian government. As per the agreement seize fire is to continue for 10 days that started this week. But then again despite the positive outcome of the talks between the two Cold-War enemies, there still seems to be some kind of mistrust.

The success of ceasefire hinges on the future of a 2 lane highway that leads to Aleppo. This highway is lined with wreckage of burned out cars and deserted buildings. It runs from Turkey and leads to eastern part of Aleppo which is held by the rebels supported by the United States. Further, there are somewhere around 250,000 civilians in the city who face water, food and medicine shortage.

Under the terms of the ceasefire pact, the road has to be cleared of the Syrian troops who have held the road for last 2 months and of the rebels who have been challenged the troops ever since. This is in in order to make a way for the aid convoys to reach Aleppo. The aid convoy has been stuck at Turkey unable to reach Aleppo. Unfortunate thing is that the ceasefire pact may be a failure.

There are many reasons why the ceasefire pact wouldn’t last log. From the Syrian Government to Al-Nusra, none really want the pact to last. The pact states that the Syrian troops and rebels backed by the US wouldn’t shoot at each other. However, it doesn’t include the terrorist organizations. If the truce lasts for more than seven days, then the US and Russian government will coordinate their air-force strikes against IS and Al-Nusra. At the same time Syrian government will have to stop shelling the rebel held areas. If the target is achieved, the Syrian government and rebels can then perhaps negotiate to end the war for good.

All of this sounds good except that the end objective of the US and Russia is different. The US wants Assad out of power, while Russia wants a stable government which it sees with Assad. While both of them trade accusations, the opposition groups in Syria are particularly concerned that the truce will help Assad government to improve its military positions and thus launching an offensive in the south.  Another reason for the ceasefire to be a failure could be the IS and Al-Nusra attacking both the Syrian troops and rebels, in part, to avoid becoming the only remaining targets of airstrikes.

Another problem that arise from the ceasefire-pact is whether how to enforced the pact? For the pact to be enforced there needs to be a monitoring group, which perhaps isn’t there.

While it will be remarkable if the pact is indeed upheld, it seems highly unlikely, for the stakes are too high for each side.


Unrest in Bangalore after SC’s judgement is Cauvery case (Mischief)

The Supreme Court of India delivered its judgement in Cauvery water dispute case on Monday. Judgement was not received well by the people of both Tamil Nadu and Karnataka and violence erupted in both states. Multiple incidents of vandalism were reported. One may see what happened on Monday as an example of mischief.


Mischief is defined under Indian Penal Code as:

“Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or diminishes its value or utility, or affects it injuriously, commits “mischief”. Explanation 1.—It is not essential to the offence of mischief that the offender should intend to cause loss or damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or knows that he is likely to cause, wrong­ful loss or damage to any person by injuring any property, wheth­er it belongs to that person or not. Explanation 2.—Mischief may be committed by an act affecting property belonging to the person who commits the act, or to that person and others jointly.”

The punishment for committing mischief is imprisonment for a term which may extend to 3 month or a fine or both.

Mischief under the IPC is similar to the English law wherein mischief is known as ‘malicious injury to the property’. Further, malice is presumed from the nature of the act committed and its illegality.

Mischief comprises of mens rea (mental element) and actus reus (physical element). For mens rea, the doer must have an intention or knowledge that by such an act he is going to cause wrongful loss or damage to any other person or property. The incident of burning busses owned by a private transport company and vehicles registered in Tamil Nadu, clearly indicate the intent and knowledge on part of the hooligans. Their act of burning and pelting stones on vehicles of specific identity clearly suggests that they had knowledge that such act would cause damage to public or any person.

The actus reus for mischief is the destruction of property or any change in its situation that destroys or diminishes its value or utility. Mischief doesn’t apply to those acts which are done accidentally or negligently, but is only limited to those acts which lead to damage cause due to willful conduct or with knowledge. Further, the type of property covered under this offence is both, moveable and immoveable property.

The inclusion of term damage along with wrongful loss makes it evident that the legislature intended to bring within the purview of the offence of mischief, not just acts which resulted in wrongful loss but also those acts which caused damages by wrongful means. Further such damage should be caused with the intention or knowledge to cause the same. The term damage hence involves an invasion of a right, though not necessarily invasion that involves damage or destruction. However, it is necessary that the value of the property so damaged by the invasion of a right leads to reduction of value or usability of the damaged property. Additional, for it to be punishable, the person must have contemplated at the time of committing such act that the damage would lead to diminution of the property.

Thus where the value or utility of property has been diminished or has been destroyed, the offence of mischief is said to have been committed. Such destruction and diminution of property must be the result of an immediate or proximate act of the alleged doer and the utility must be seen from what is conceived by the owner. Additionally, mischief doesn’t include negligence within its fold. The value of the property though trifling wouldn’t matter as long as other requirements of the section are satisfied.

Thus if we look at the requirements of mischief, it is quite evident that the alleged acts committed in yesterday’s protests would satisfy prerequisites of a mischief, including destruction of property to diminution of value of property.

North Korea’s Nuclear Test

On Friday, 9th of September North Korea conducted a nuclear test for the fifth time on the country’s National Day. The only difference is that this time it was successful and much more powerful. This had led to outrage all over the world, with many leaders reacting angrily. China opposed the test, with South Korea terming the leader maniac and the US warning the North of serious consequences with further new sanctions. The main question popping out of the entire issues is whether the sanctions have worked in any way to deter the North from raising its nuclear arsenal?

According to North Korea, the rationale behind having its own nuclear arsenal is that otherwise it shall meet the same faith as Saddam Hussein’s Iraq and Gaddafi’s Libya. Despite sanctions against it and with poverty rampant, North Korea says it won’t be deterred as it seeks to protect itself from the United States.

The US has reportedly pressed the UN to impose sanctions against North Korea with five sets of UN sanctions been imposed since 2006, when the North carried out its first test. Talks among the world powers have failed to deter North Korea from discontinuing its nuclear programme.

The US and its allies are in a precarious situation. If they impose tough sanctions like blocking any oil export to the country, block all shipping going in and out of North Korea and to paralyze its finances, they risk many people would starve in the country. Further, there is a risk of this confrontation in Asia escalate to war. However, starting talks with North Korea on Kim Jong-Un’s terms would lead him to be defiant of the Allies and there is no guarantee that he will discontinue his nuclear programme.

With the continuing threat posed by the North, many in South Korea believe that it should develop its own nuclear weapons as it cannot solely rely on the US. In fact Mr. Trump’s suggestion that the South and Japan should pay more to the US to defend it, there has been concern among these nations and it seems that the South wouldn’t be far from developing its own nuclear arsenal. According to experts if South decides to develop its own nuclear arsenal, North Korea would focus more on developing its short range missiles capable for targeting the South. This is perhaps due to the fact that it would consider South Korea as a direct and graver threat than the US.

No matter what the outcome of today’s UNSC meeting will be, it seems that imposing sanctions doesn’t work against North Korea and reflects failure on part of the US’s foreign policy.

Indian Legal Issue- The Recent Controversies regarding the BCCI

This article pertains to the contentious issue of  the legal status of Board of Cricket Control in India or the BCCI, a debate which has been ongoing since the first litigation was filed to that effect in 2005, the Zee Telefilms Case that was decided by the Supreme Court by a 3:2 majority. The main issue raised in the aforesaid case was whether the BCCI can be considered State under Article 12 of the Constitution by bringing it under the ambit of ‘Other Authorities’. The Supreme Court very smartly provided aid to the petitioner by first holding that the BCCI cannot be considered State because it is a private body and then it went on to saying that, in situations where private bodies such as the BCCI perform public functions, they can be made amenable to the writ jurisdiction of the High Courts under Article 226 of the Constitution. The main reasoning that the court provided for not declaring BCCI as Other Authorities or State under Article 12 was that it would open floodgates to severe unnecessary litigations on such federations and institutional matters. On the other hand, the minority in this case observed that though BCCI’s functions had an inherent public nature involved, all of its functions were not in public domain and so a writ petitions can lie only if the contentions involved are based on public functions performed by the BCCI.

The controversy related to BCCI and its functioning has arose again in the legal domain after various incidents of alleged corruption in the primary governing body of the sport came in limelight. The recent SC decision in BCCI v. Cricket Association of Bihar brought back all the discussion over this issue and a look into all the judgments was given by the two-judge bench that included CJI T.S. Thakur. The SC in this case again reiterated that even if the BCCI is performing public functions, it can be taken to court under Article 226 and not Article 32. In holding the same, the two-judge bench evolved a new test called “nature of duties and functions” test. Under this, the SC laid down various activities performed by BCCI in which direct assistance is taken from Central/State governments. Adding to the same, they held that BCCI is predominantly a body performing public functions with trite assent of the governments. Further, the court ordered the BCCI to follow the recommendations laid out by the Lodha Committee in order to revamp the BCCI and make its functioning more accountable.

A third-person analysis of the abovementioned judgment will let us delve into one question, if BCCI gets assistance from the governments and also gets protection from State Police and in other ways, why can’t it be termed as “Other Authority” within the ambit of Article 12. We fail to understand why this question has not been appropriately addressed and this view negated, even after coming to the fore time and again.

Building up on Justice Katju’s report on BCCI restructuring, we can say that the judgment in BCCI v. Cricket Association of Bihar was partly flawed because it overlooked precedent decision which were binding on the two-judge bench while ordering BCCI to follow recommendations. Adding on to this point, even the court accepts that BCCI is a private body and is registered under Tamil Nadu Societies Act, then such an order asking for restructuring is one involving major judicial overreach. The power to do the same lies with the BCCI itself, or the State Legislature and Parliament. In light of the same problems, the BCCI is planning to file a review petition against the judgment in the SC and it will be interesting to see whether the SC admits it, keeping in mind the current record of the SC to reject majority of the review petitions.

#CanYouHearUsNow: Khizr Khan, Ghazala Khan, and Islamophobia in the U.S.

In the previous prejudice post (Reinforcing the Narrative Against Islam: , I argued that the West reinforces a narrative against Islam. And one of the major ramifications of doing the same is the exclusion of Muslims in the “gray zone”. The Muslims of the gray zone are well-adjusted, assimilated. The ISIS aims to eliminate this gray zone. And the Western-right wing propaganda helps doing the same.

Up until the first week of August, Khizr Khan and Ghazala Khan were Gold Star parents, like a lot other in the United States. What this means is, they had lost their son, Humayun Khan, a captain in the U.S. Army, during the Iraq war of 2003. And we only saw a muted response to Trump’s denigration of Muslims and Islam. It was the Democratic National Convention that brought about the outcry of a slain soldier’s parents (Khizr and Ghazala) against Donald Trump’s callousness and his Islamophobia. Quoting from Khizr’s speech during the DNC, he alleged “Have you ever been to Arlington Cemetery? Go look at the graves of brave patriots who died defending the United States of America. You will see all faiths, genders, and ethnicities”.

It is argued that both politicians and the public should have jumped on this much sooner.

What is expected of Muslim-Americans to show their nationalism and patriotism, is a sense of ultimate-sacrifice. Or any sacrifice. In an absence of the same, Muslims in America and the world over are labeled as “terrorists”, for the crimes committed by a bunch of people belonging to the sect. If this incident shows that America can overcome the bigotry and xenophobia that Trump represents, it also shows how much Trump has already set back the nation.

There exists a problem in the choice of family that the Democrats made for making a speech on their convention. The problem in choosing a family that had displayed such extra-ordinary sacrifice and patriotism, is sending out the implicit message that Muslims need to show such extra-ordinary loyalty to deserve the same amount of respect and rights as everyone else.

To add to this, Khizr Khan accentuated this standard by opening his speech with the words “patriotic American Muslims-with undivided loyalty to our country”.

With other politicians such as Bill Clinton making statements and asking Muslims to “stay here and help us win and make a fun together” is putting an unnecessary burden only on one community- we do not see any such demands made to any other community- be it the Mexican Americans or the Jewish Americans.

In the days that ensued, most of the outrage, from both the politicians and the public has been centered about Trump’s criticism of a Gold Star family. And quite wrongly so, because this misses the entire point. There is nothing inherently wrong with openly disagreeing with someone who has lost a child in a battle.

What makes Donald Trump’s attack on the Khans odious is not the fact that he criticized a father and mother, who lost their son in a war. It’s the anti-Muslim bigotry that he displays. The reasons why all of us should embrace the Khans and repudiate Trump’s claims is not because they are Gold Star parents and Trump is not. It’s because the Khans stand to defend religious liberty, while he is menacing it.

Image Credits: Garry Knight, Flickr

Confessions of an accused under the Indian Law

It is often believed that under no circumstances can a court rely only on inculpatory part of a confession and ignore exculpatory part. However, in Nishi Kant Jha v. State of Bihar, AIR (1969) SC 422, court held that “statement of the accused made under Section 313 Cr. P. C. can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part in found to be false on the basis of the evidence led by the prosecution.” This statement was also corroborated with a confession made to the mukhiyaa of the village (extra-judicial confession) and the accused was convicted on the basis of inculpatory part of the confession.

In this case court also considered the then established legal position. In Palvinder Kaur v. The State of Punjab, [1953].S.C.R. 94 Supreme Court stated that the Court cannot accept the inculpatory part of a statement and reject the exculpatory part. However, Supreme Court was of the opinion that in palvinder Kaur case Allahabad HC merely said that:

“(a) where there is other evidence, a portion of the confession may in the light of that evidence; be rejected while acting upon the remainder with the other evidence; and

(b) Where there is no other evidence and the exculpatory element is-not inherently incredible; the court cannot accept the inculpatory element and reject the exculpatory element.”

Hence, ignoring exculpatory part and considering only inculpatory part was a valid legal position. Supreme Court further considered other authorities such as Taylor’s book on Law of Evidence (11th edition), Roscoe’s book on Criminal Evidence (16th Edition, page 52) etc.

Further, Nishi Kant Jha v. State of Bihar is still good law. (It was referred to by SC in Mohan Singh v Prem Singh and another, AIR 2002 SC 3582 and State of Karnataka by C. P. I., Sullia Circle, D. K. v Shekhar V. Harikanth, 2016 Indlaw KAR 4416)

Under such circumstances we can conclude that if a confession can be divided into inculpatory and exculpatory part, and exculpatory part can be excluded by using other evidence; accused can be punished on the basis of inculpatory part of the confession.


Maldives democracy plot

It is unusual to get advance warning of an attempt to topple a government. Ousting leaders are risky undertakings and any effort relating to it along with the names of the plotters are kept secret. But it wasn’t the case with Maldives, where the media said that they’ve got an inside information that such a plot is going to take place.

Maldives is a country made up of many islands and atolls, with most of its population residing in Male, the country’s capital. The capital consists of all the country’s key institution. The country held its first free elections in 2008, when the dictator leader Maumoon Abdul Gayoom, often accused of corruption, had to back down and give way for democracy. He lost heavily in those elections to Mohammed Nasheed. The new President rolled back the regressive laws, strengthened the democratic institutions and captured the world’s imagination when he held an underwater cabinet meeting to highlight the issue of rising sea level and its risks. However, Mohammed Nasheed’s plan to have Maldives as a model Islamic democracy didn’t last long. 4 years into power and he was ousted in a coup. Now Mr. Nasheed lives in self-imposed exile in the UK, with Abdullah Yameen, half-brother of Maumoon Gayoom now heading the country.

The current president, Mr. Abdullah Yameen, faces allegations of corruptions dating back to more than a decade. These including an oversight of oil sales worth $300 million by a company headed by him to Myanmar’s military dictatorship when under economic sanctions. This is combined with allegations made by the former President, Nasheed that half the money disappeared. The amount is huge for a tiny nation like Maldives. Further, Mr. Yameen faces growing opposition for purging his potential rivals. Some have criticized Mr. Yameen for a recent change in law which will allow the government to sell islands without competitive bidding.

Mr. Nasheed and Mr. Yameen have had many clashes over the past few years. Mr. Nasheed alleges that it was Mr. Yameen and his supports who led the coup against him. He also alleges that this was on account of the fact that his government sought to recover $400 million that Mr. Gayoom and his associates had looted. Not only have there been allegations of corruption but also opposition to the autocratic rule. With the present government passing a new defamation law that criminalizes any criticism of the government, the journalists in the country have resorted to open criticism.

Along with corruption and political turmoil, Maldives faces significant risks in the short to medium term. It seems that the report of toppling Mr. Yameen might be true with former President Mr. Nasheed flying to neighboring Sri Lanka to hold talks with the opposition groups. Perhaps the future of tiny island nation in Indian Ocean and that of its democracy, looks grim.


The Haji Ali Dargah Ruling

The Bombay High Court today decided on the issue of entry of women in the inner sanctum of the Haji Ali Dargah. The Bombay High Court said that the ban violated the constitution as it discriminated against women.

The ban, that was imposed in 2012 by the trust, argued that it was a sin to allow women to touch the tomb of a male saint. Although women were allowed in other parts of the Dargah, the 2012 ban barred them from entering the inner sanctum, which housed the tomb of a Sufi Saint.

A PIL challenging this ban was filed under Article 226 of the Constitution of India by social activists (petitioners in the present case), alleging grounds of gender discrimination and arbitrary denial of access to women in the inner sanctum.

The petitioners state that they are the office bearers of `Bharatiya Muslim Mahila Andolan’ – a national secular autonomous mass movement of Muslim Women with over 50,000 members in 15 States. According to the petitioners, earlier during their visits, they were permitted to enter the inner sanctorum where the saint lied buried, through a separate entry earmarked only for women to enable them to offer prayers. But in June 2012, one of the petitioners discovered a steel barricade put up at the entry of the inner sanctum’s sanctorum, preventing women from entering this part of the mosque. When the petitioner sought reasons for the same from the President of the Haji Ali Dargah, he disclosed the following reasons for imposing such a ban:

  1. women wearing blouses with wide necks bend on the Mazaar, thus showing their breasts;
  2. for the safety and security of women; and
  3. that earlier they were not aware of the provisions of Shariat, and had made a mistake, and therefore had taken steps to rectify the same.

The petitioners approached various state authorities to discuss this matter, but to no avail. Even though the authorities arranged for a meeting between the petitioners and the Haji Ali Dargah Trust, the issue could not be resolved. Aggrieved by the fact, the petitioners filed a PIL in the Bombay High Court, seeking, among other reliefs, an appropriate writ, order or direction in the nature of writ of mandamus and to declare that female devotees have an equal right of entry and access to all parts including the sanctum sanctorum (mazaar) of the Haji Ali Dargah, on par with the male devotees and to restore status quo ante, by permitting female devotees to enter the sanctum’s sanctorum.

The High court decided in favor of the petitioners, stating that the ban barring the women from entering the sanctum’s sanctorum was violative of Article 14 (equality before law within India), Article 15 (prohibition of discrimination on grounds of religion, caste, sex), Article 19 (1)(d) (to move freely throughout the territory of India) and Article 25 (freedom of conscience and free profession, practice and propagation of religion) of the Indian Constitution.

The ruling, however, doesn’t mean that the women will be allowed to enter the Dargah immediately, as the High Court has granted a stay on the order for six weeks to allow the shrine authorities to appeal to the Supreme Court.

No matter what the Supreme Court decides, this judgment of the High Court paves the way for justice to all and gender equality. According to one of the petitioners, it was a major setback for the patriarchs.

Image Source: Times of India

ICC Charges on Ahmad al-Faqi al-Mahdi

Ahmad al-Faqi al-Mahdi pleaded guilty to charges of destroying ancient cultural artefacts in Timbuktu at the International Criminal Court (ICC) and begged forgiveness earlier this week. The case against him is considered to be landmark in convicting criminals for destroying ancient cultural sites. This is the first ever case of a suspect charged with war crimes against a World Heritage Site.

Politicians and the Government have been slow to crack on these evil acts, but experts believe the trial and subsequent pleading of Mr. Mahdi will bend in the right direction.

Mr. Mahdi said he had been caught in an evil wave during the civil war. He is accused of intentionally directing attacks against 14 mausoleums in the city of Timbuktu. The buildings were UNESCO World Heritage Sites that housed the tombs of Muslim Scholars saints since the 14th Century.  Prosecutors hope that this case will draw attention to the increasingly destruction of cultural and religious sites carried out by the ISIS in Iraq and Syria.

Modern History is filled with cases of wartime destruction of cultural sites, from the leveling of Dresden to the destruction of giant Buddha Sculpture at Bamiyan. IS fighters burned down the Mosul library in Iraq last year as well as destroyed monuments at the Roman site of Palmyra in Syria.

Until now the ICC and other international courts have focused mainly on crimes against individuals, such as murder, rape and torture.

As per one senior legal adviser to Amnesty International, the crimes against individuals have an immediate impact while the consequences of cultural destruction is beyond the victims, it is an attack on people’s cultural identity.

According to Irina Bokova, the head of UNESCO, “The destruction of culture is a central element of a global strategy of hatred, the protection of such heritage – including by ending impunity for crimes – must … move to the forefront of peace building.”

For the people of Timbuktu, freed from Islamist Occupation by French troops in 2013, Mahdi’s trial is justification of the importance of their culture and the place these shrines hold, says Cynthia Schneider, a scholar of relations with the Islamic world and a former US ambassador.

Schneider is a co-director of the Timbuktu Resistance, a project which aims to foster peace unity and economic redevelopment in Timbuktu, where the economy has dried up after the destruction as the city’s main income was tourism.

UNESCO helped in rebuilding the tombs of the Sufi saints, who are believed in Timbuktu to protect the city against evil spirits.

Some Malians call this trial as the “trial of stones and earth” and question its significance as to them the world seems to be ignoring the executions, rapes and amputation of hands etc. Albeit, the destruction of shrines and monuments has become a distinctive feature of Islamic Extremism, with many statues, churches and tombs being attacked in Iraq, Syria and Afghanistan.

Although, the small mud shrines are not particularly architecturally beautiful but they are key to the identity of Timbuktu and to its economy.



Child Labour(Prohibition and Regulation) Act, 2016 violates Child Rights

At first look, the Child Labor (Prohibition and Regulation) Amendment Act, 2016, passed by Parliament, appears to be dynamic. The objective of this act is to preclude child labour in all forms. Furthermore, the act also prohibits labour by adolescents in hazardous occupations wherein adolescents are those who are in the age group of 14-18 years.
The amendment act has several loopholes. Firstly, it has amended the schedule which mentioned the hazardous activities. In the original schedule, there were 83 hazardous activities. However, under the new amendment, there are only three including mining, explosives and occupations mentioned under the Factory Act, 1948. Apart from this, Section 4 of the act provides that the hazardous activities can be removed by the government authorities at their own judgement. Secondly, it permits children less than 14 years of age to contribute into non-hazardous family enterprises. This severely undermines the object of Article 21-A as well Right to Education Act, 2009. Thirdly, the family enterprise concept vindicates the proprietors and administrators of global supply chains from any lawful commitments of reasonable wages, safe work conditions and social insurance to the genuine end-line children who work in segregated home-based units. The amendment, instead of ending child labour, provides a leeway for it by drafting legislation in a loose manner. Not only do the new amendments reverse the gains of the 1986 Act, but actually contradict the Juvenile Justice (Care and Protection) of Children Act of 2000 that makes it punishable for anyone to procure or employ a child in a hazardous occupation .
Amendment Act as violative of Constitutional provisional and International Conventions.
Eighty-sixth amendment, 2002 added Article 21-A in the Indian Constitution. Article 21-A makes it mandatory on State’s part to provide free and compulsory education to children of age six-fourteen years. Similarly, Article 24 of the Constitution provides that no children below the age of fourteen years shall be employed in any factory or mine or engaged in any other hazardous employment. Direction for free and compulsory education for children has been provided under Article 45 of the Constitution. By amending the Schedule pertaining to hazardous activities, the amendment has violated the spirit of Article 21-A. In fact, the act aims to accomplish opposite of what it claims to do.
India has not ratified International Labour Organization’s Convention 138 on Minimum age of employment. It has not ratified Convention 182 on Worst Forms of Child Labour either . The only international convention relating to child labour which has been ratified by India is Convention on the Rights of the Child, 1989.
State should act as a legitimate actor in curbing the menace of child labour instead of paving way for it. The state is granted legitimacy in the eyes of the national and international community, and it must ensure that the Right to Education is complied with, in its entirety, so that the next generation gains access to basic advantages associated with literacy .