Ain-o-Salish Kendra vs Bangladesh (2011)

Case Title: Ain-o-Salish Kendra vs Bangladesh (2011)

Citation: 63 DLR (2011) 95

Court Name: High Court Division of the Supreme Court of Bangladesh

Name of Judges: Justice Md. Imman Ali & Justice Obaidul Hassan

Bench Type: Division Bench, exercising writ jurisdiction under Article 102 of the Constitution.

Date of Judgment: 5^th September 2010

Parties Involved:

Petitioners:

1. Ain-o-Salish Kendra (ASK), a prominent human rights and legal aid organization in Bangladesh.

2. Aparajeyo Bangladesh, an NGO working for disadvantaged children.

These organizations filed the writ petition in public interest, seeking judicial intervention to protect child laborers in bidi factories.

Respondents:

1. The Government of Bangladesh, represented by the Secretary, Ministry of Labour and Manpower.

2. Chief Inspector of Factories.

3. Owners of specific bidi factories (Maya Bidi Factory, Aziz Bidi Factory, Minhaz Bidi Factory).

Facts of the Case:

1. There were reports from national newspapers named Daily Ittefaq, Daily Jugantor & Daily Prothom Alo that revealed that about 10 to 25 thousand children aged 4 to 16 years were working in bidi factories in Haragacha, Rangpur.

2. The petition was brought forward seeking an order from the Court declaring continuous failure of the respondents to ensure healthy, hygienic, safe & humane conditions for the workers of the bidi factories.

3. The reasons, as per the petitioners, were that the children were inhaling tobacco dust and exposed to chronic diseases such as asthma, tuberculosis, jaundice, bronchitis, kidney infections, and skin/eye diseases, which is a violation of Article 27 and 31.

4. Doctors at Rangpur Medical College and Chest Hospital confirmed that long-term bidi workers suffered serious health consequences, with at least 30 deaths in five years, including seven children.

5. Reports suggested that workers got around 13.50 taka for rolling 1,000 bidi sticks. This reflected exploitation and poverty.

6. The exploitation and poverty were reflected in the minimum wages of workers. The workers got around 13.50 taka for rolling one thousand bidis.

Issues Raised:

1. Whether or not the employment of children in bidi factories under hazardous and unhygienic conditions violates constitutional guarantees of equality, dignity, and equal protection of law?

2. Whether or not the State has failed to discharge its constitutional obligations under Articles 14, 15, 17, 19, 20, and 28, which relate to emancipation of workers, provision of basic necessities, compulsory education, equality of opportunity, and prohibition on discrimination?

3. Whether the international conventions ratified by Bangladesh (CRC, ILO Convention 182) are binding and required in the domestic legal system or not?

Petitioner’s Arguments (ASK & Aparajeyo Bangladesh)

While mentioning the violation of laws, they cited Section 3(3) of the 1938 Employment of Children Act. They also argued that the constitution itself mandates these protections, referencing Sections 2, 34-44, 51-60, 101, 102, and 103.

The reports and medical evidence produced showed children exposed to tobacco dust, leading to chronic diseases and deaths. So, the provisions were blatantly ignored.

Constitutional Breach:

They also argued that there were certain violations of the Constitution itself. Such as-

1. Article 14: Emancipation of workers from exploitation.

2. Article 15: Provisions of basic necessities.

3. Article 17: Free and compulsory education.

4. Article 19: Equality of opportunity.

5. Article 20: Work as a right and duty.

6. Article 28: Discrimination on the grounds of religion, etc.

7. Article 34: Prohibition of forced labor.

International Obligations:

The petitioners also highlighted our international obligations, noting the ratification of the ILO Convention 182 (Worst Forms of Child Labour) and the Convention on the Rights of the Child (CRC). 

They reminded the court again and again about the previous course of action taken by Bangladesh and the future one to enforce domestically.

Systemic Poverty:

Their argument stated that child labor is a product of poverty; without State intervention, families are compelled to send children to work.

In this regard they quoted one poem named “Child’s Appeal” by Mime Gene Cole, referring the Indian Case Mc. Mehta Vs. State of TN (1996) 6 SC 756 and also added 2 Bangla line.

Relief Sought:

1. They prayed for a declaration on the matter that employment of children in bidi factories is illegal and unconstitutional.

2. They wanted clear directions to enforce labor laws, provide medical treatment, and ensure compulsory education.

3. They sought orders against specific bidi factories engaging in child labor and also to compensate for the injured ones.

Respondents Arguments (Government & Factory Owners):

Denial by Factory Owners:

Managers of those factories denied employing children and claimed that registers showed only adult workers. Thus, the children seen in factories were allegedly “helping hands” or “couriers of food” and in no way they were workers.

Admission of Violations:

Despite the claims of the factory managers, the Chief Inspector of Factories affirmed that inspections revealed child labor and poor conditions. So, the alleged factories were prosecuted under Section 284 of the Labour Act, 2006.

Practical Difficulties:

The reports showed that enforcement machinery was inadequate; there were only a few inspectors to monitor thousands of factories.

Government Initiatives:

The government had already felt the urgency of formation of the National Council for Industrial Health and Safety (2009) and drafting of the National Occupational Safety and Health Policy.

Argument of Poverty:

The government did not hide and acknowledge that child labor is widespread due to poverty and food insecurity but argued that sudden prohibition could worsen destitution. Their proposal was that the process needs adequate time for proper execution without any harm to any party.

Judgment:

I) The High Court Division held that child labor in hazardous bidi factories is- unconstitutional, illegal, and a violation of fundamental rights.

II) The Court emphasized that compulsory education under Article 17 must be made into a reality and cannot be mere lip-service.

III) The Court issued extensive directions to the government, which included:

1. Immediate steps must be taken to end bonded child labor in the fishing and bidi industries, which is known as Dadon locally.

2. Ensuring compulsory education with financial support to families so children are not forced to work.

3. The establishment of a separate Ministry or Department for Children’s Affairs.

4. The labor law should be amended.

5. Compelling bidi manufacturers to provide medical facilities and insurance.

6. Phasing out the home-based bidi rolling within one year.

7. Ensuring safe, healthy, and hazard-free working conditions in all factories.

8. Workers must get reasonable remuneration.

9. Strengthening poverty alleviation programs to reduce child labor.

The Rule had been made an absolute, with directions communicated to the Prime Minister’s Secretariat, along with relevant ministries, and international organizations (UNICEF, Save the Children, ILO).

Ratio Decidendi:

1. The Court reaffirmed that the constitutional mandate of Article 17 requires compulsory education, and failure to implement the same fuels child labor. Whereas Articles 14, 15, 19, and 20 impose duties on the State to emancipate workers, provide necessities, and ensure equality of opportunity. Lastly, Article 28 allows special provisions for children.

2. The ratified international conventions are binding upon us and must be implemented domestically. The Court cited Hussain Muhammad Ershad vs Bangladesh (21 BLD AD 69) to affirm that international instruments must be parallel to domestic law..

3. The Court took the matter as a health- and dignity-oriented one. Hazardous child labor violates the right to life, dignity, and protection of law under Articles 27 and 31.

4. The Court recognized poverty as the root cause of child labor and accepted that it creates a vicious cycle of illiteracy and exploitation.

5. The Court expanded its scope beyond “bidi” factories to address child labor nationally.

6. In terms of comparative jurisprudence, the Court referred to MC Mehta vs State of Tamil Nadu (India), where the Supreme Court prohibited child labour in hazardous industries and suggested rehabilitation funds.

7. The Court took the poetical observation and emphasized that children are assets of the nation, not just their families, and must be nurtured like a mother nurtures her child.

Observations

This judgment had created an undeniable impact and became a landmark judgment in Bangladesh’s jurisprudence on child rights and labor law. Because it revived the constitutional obligations and international commitments to eliminate child labor. Despite the Court’s orders, their implementation is challenging due to socioeconomic realities. The ruling clearly demonstrates how the court system has broadened its writ jurisdiction to deal with national matter. It also highlights the crucial role NGOs play in defending the weak in public interest lawsuits.