Aditya Tripathi & Himanshi Tripathi | Damodaram Sanjivayya National Law University, Visakhapatnam | 11th November 2019
Introduction:
“Childhood should be carefree playing in sun, not living a NIGHTMARE in the darkness of the soul”
-Dave Pelzer, A Child called “it”
Childhood is the age of pleasure and enjoyment. It is the stage where the infant goes to school, spends time with their family, and gets affection from his parents. The importance of a better carefree environment for children is to protect their incredible future and contribution towards nation building as childhood is the base of a good adulthood. The future of a country depends upon the present of country’s children. It becomes necessary for a nation to invest upon the country’s future by protecting their rights and framing and implementing laws regarding child welfare.
Child labourers are exploited, paid minimal wages and made to work under unhealthy conditions which adversely affect their mental and physical health. This makes the nation to be deprived of the healthy working force required for its continuous progress and growth. The lives of the children have become miserable in such conditions making it pitiable.
Child labour is a big socio-economic problem which has to be solved by the combined efforts of the people and the government. One of the major causes of child labour is poverty and lack of educational facilities. Children (0-14 years) constitute approximately one-third of the population of India. Article 24 of the Indian Constitution states “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment”.
One in every 11 children in India is working. Child labour has been decreasing at an abysmal rate of 2.2% per year from 2001 to 2011, as per an analysis of census data by non-governmental organization CRY (Child Rights and You). There are still 4.5 million children in age group 5-14 years who are working.[1] The major occupations engaging child labour are Pan, Bidi & Cigarette making, Construction, Domestic workers and Spinning & weaving. Uttar Pradesh (20.58%) tops the list followed by Maharashtra (11.41%), Bihar (10.37%), Andhra Pradesh (9.29%), and Madhya Pradesh (6.57%).[2]
Efforts have been made by the government of India in forming of stringent statutory legislations but the implementation at the ground level is not upto its mark even though Child labour is banned under the article 24 and later right to education was guaranteed by the 86th Constitutional Amendment which inserted 21A in the Constitution there is major violations of these rights. Further, Child Labour (Prohibition and Regulation) Act, 1986 was passed by the Parliament to counter the problem of child labour in a more effective manner but needed amendments time to time and was amended recently in 2016.
History of Child Labour in India:
The presence of child labour in the society can be traced back from the history long back ago as children used to help their parents while working in the fields with them. The form of exploitation of children started during the age of industrialization from 17th century. It was the era where large numbers of human population were employed in the factories instead of machinery. During this period there was a large structural change in the pattern of occupation. Many articians were forced to work in these factories because they lost their jobs. But the evil thought of exploitation emerges in the mind of the factory owners as they started employing children in their factory because the cost of employing them was less as compare to adults.
Earlier child used to work in the factories for continuous 12 to 18 hours a day, six days a week in order to earn a penny. Children more often of the age group of 7 years began working with the tending machines in the spinning mills, they used to work in the factories without having proper light and air and the chemical substances often harm them, best example of this bangle industries.
Constitution of India and Child Labour:
Laws in India banning employment of children date back to 1881, under the colonial rule.[3] The act formed in 1881 banned the employment of children below the age of 7 years in factories was the first action by Indian government against child labour. The Children (Pledging of Labour) Act, 1933 followed by the Employment of Children Act, 1938 were the first statutory enactment dealing with child labour which was repealed by the Child Labour Act, 1986. The Child Labour (Prohibition and Regulation) Act 1986 is an outcome of various recommendations made by a series of Commissions.[4] This legislation was enacted to reform the legal measure, as the policy of both Prohibition and Regulation.
Constitution of India contains provisions for upliftment, development and protection of children providing free education for children till the age of 14 years. Indian Constitution deals with child welfare through specific rights entailed to them under fundamental rights and some specific legislation under directives principles of state policy. The following Articles of Indian constitution states child welfare –
Fundamental Rights:
Provisions related to the welfare of the child rights are reflected in Article 15(3) – Nothing in this article prevents the State from making any special provision for women and children. Thus article empowers the State to make special provisions for the children in order to stop exploitation against them. Further Article 21A – The State shall provide free and compulsory education to all children of the age 6-14years.The article inserted keeping in view creating the necessary base for the economy by providing education free of cost, as most of the population in India is living below the poverty line this force them to send their child on manual works rather than sending them to the school ultimately results in child labour. Article 23 – Prohibits traffic in human being and beggar and other similar forms of forced labour. (Child Trafficking for slavery is a major issue as to child labour). Trafficking in human being for sex, making them to work for their employers for lifetime are some of the serious problem prevails in the economy and new problem such as trafficking in child which need to be tackling as quickly as possible. The main provisions the deals with child labour in India is given under the Article 24 which states that no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment. This article is important as it prohibits the child labour in hazardous employment in order to bring welfare to the children.
Directive Principles of State Policies:
Article 39 (e) – Requires the State and secure that the tender age of children are not abused and to ensure that they are not forced by economic necessity to enter avocations unsuited in their age or strength. Those children are given opportunities and facilities to develop in a healthy environment of freedom and dignity and that childhood and youth are protected.
Article 39 (f) – Enjoins the State to ensure that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that the childhood and youth are protected against exploitation and against moral and material abandonment.
Article 45 – The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years.
Article 51A (k) – It is the fundamental duty of the parent or Guardian to provide opportunities for education to the child or ward between the age of 6 and 14 years.
The main object of these articles is to ensure that there is no injustice and infringement of child rights, equal opportunities must be given to a child for overall development.
Laws and government policies against Child labour in India:
Legislations are formed by the government in order to ensure the welfare of the citizens of the country. There are some legislations which strictly deals with the welfare of the children and prohibits and prescribe punishment for the employer who employees those children to work for them. Abolition of child labour laws can be formed by both central and state governments.
The Children (Pledging of Labour) Act, 1933
The Act declares any agreement by a parent or guardian to pledge the labour of a child below 15 years of age for payment or benefit other than reasonable wages and to the detriment of the child, to be illegal and void. It also provides punishment for such parent or guardian as well as those who employ a child whose labour is pledged.
The Factories Act, 1948
The Act prohibits employment of children below the age of 14 years in any factory. A child of 15-18 years can be employed in a factory only if he obtains a fitness certificate from a medical practitioner and they shall work for not than four and half hours. Working in night hours was also prohibited.
Indian Penal Code, 1860
There is no special provision for punishment for child labour, but S.374 prescribes a punishment of imprisonment of one year and/or fine, for unlawful compulsory labour. S.370 makes the buying or disposing of any person as a slave an offence punishable with imprisonment which may extend to seven years and/or fine.
Therefore, a need arose for the central legislation for punishment for child labour.
Child Labour (Prohibition and Regulation) Act, 1986
The Child Labour (Prohibition and Regulation) Act, 1986 was enacted with the main objective to protect the childhood of the young generation of the country and provide them basic necessary requirements which are necessary for their growth. The basic objective of the Act is to prohibit the employment and to regulate the conditions of work of the children who have not completed the age of 14 years in some occupation as defined under the Part-A of the schedule or in any of the workshops wherein the process mentioned in the part-B is carried out; provided that nothing in this section shall applicable to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from, Government. The act provides for constituting of a Child Labour Technical Advisory Committee (CLTAC) who is responsible for advising the government about additions to the Schedule lists (the factories and establishments where the children may be employed or where they can’t be employed).
This Act prohibits employment of children below the age of 14 years in hazardous occupations. Such hazardous occupations have been identified by law. This Act recognizes 18 occupations and 65 processes that are hazardous to the children’s lives and health of children. Employment of children below the age of 14 in such industries is an offence. Section 12 of this Act requires prominent display of “child labour is prohibited” at construction sites and industries in local language as well as in English.
In order to ensure security against working conditions The Act also provides that no child shall be permitted to work between 7 p.m. and 8 a.m. and shall not be forced to work over time. Further no child shall work for more than 3 hours before he has an interval of one hour. A child cannot work in more than one place on any day. A weekly holiday is allowed. The Act also provides health and safety measures for the welfare of the children. Amicable working facilities such as drinking water, latrines and urinals, cleanliness, disposal of wastes and effluents, ventilation and temperature, etc. should be provided by the employer as defined under Section-13 of the Act, it is also mandatory for the employer to take the measures for safety from dust and fume, artificial humidification, fencing of machinery etc.
Act also provides the punishment for the employer for employing any child in contravention of the provisions of the Act – imprisonment for not less than 3 months extending to 1 year or with fine not less than Rs. 10000 extending to Rs. 20000, or both.
Critical Analysis
1) The Act is in favour of regulation rather than abolition of Child Labour.
2) Absence of any measures for rehabilitation of the child.
3) Employers pretense as family members making use of proviso annexed to section 3 under the Act which makes them escape from prosecution and continue exploiting children.
4) Age of the child is differently defined under different laws.
5) Falls short of making all forms of child labour illegal.
Policies of the government against child labour in India:
Government of India laid down a National Policy on Child Labour in 1987 for eradicating Child Labour from India and to provide rehabilitation for children working in hazardous occupations. Government launched “Sarva Shiksha Abhiyan” in 2001-02 under the 10th five year plan to provide elementary education to all age groups. Children between 5-9 years were directly enrolled under this scheme. This scheme resulted in a significant outcome.
On August 01, 2006, the Government imposed a ban on employment of children as domestic servants or servants in dhabas (road side eateries), restaurants, hotels, motels, teashops, resorts, spas or in other recreational centers.[5]
Child Labour (Protection & Regulation) Amendment Act, 2016
The Act increased the number of places where the child cannot be employed. The Act lays down ban on employment of children below 14 years in all occupations except in “own account enterprises” i.e. family business and in entertainment industry provided education of child does not get hampered. A new category of persons called “adolescent (14-18 years)” is added. The amended Act prohibits employment of adolescents in hazardous occupations as specified (mines, inflammable substance and hazardous processes). The Central government has the power to add or omit any industry being stated in the list as “hazardous industry”. The Act enhances the punishment increasing the fine from 20,000 to 50,000 and imprisonment 6 months to 2 years. The offence has been made cognizable for repeated offenders.
Critical Analysis – 1) The Act states list of hazardous occupation has been reduced which will encourage child labour. Section 4 of the Act gives discretionary power to the government authorities to revise the list.
2) The child labour in family enterprises would become a major concern as to forced labour. Section 3 (5) permits work in family or family enterprises and the hours of work is not defined.
3) The Act contravenes the domestic legislations reversing the gains of previous laws. It goes against the Right to Education Act, 2009 by allowing children to work in family enterprises.
4) Lacks the provisions regarding regulating, inspection and monitoring systems.
Efforts of Judiciary against the problems of Child Labour:
Several petitions (also in the form of public interest litigations) have been filed in courts on the issues addressing child labour, welfare and rights of child.
In People’s Union for Democratic Rights v Union of India[6] the issue concerned the conditions of workmen engaged in the construction work of various projects connected with the Asian Games, including child labour. The Court held that construction work was ‘plainly and indubitably a hazardous employment’, wherein employment of children below the age of 14 years would amount to a violation of fundamental rights under Article 24 of the Constitution. The court further stated No child would willingly submit himself/herself to work and only does so in the face of great deprivation and economic and social hardships. Identifying child labour as a form of forced labour, irrespective of the work being done, would help one understand the practice as a violation of fundamental rights of a child and as being against the spirit of the Constitution.
The same was held in the case of Labourers working on Salal Hydro-project v. State of Jammu and Kashmir[7]. In 1996, an another case highlighted the State’s failure to effectively implement the laws against child labour in M.C. Mehta v. State of Tamil Nadu[8], the Court issued detailed guidelines for the eradication of child labour. The Court framed guidelines to the employers to provide separate premises for children, facilities for recreation and proper diet, though the children were allowed to work in match factories. The Court asked State Government to implement these guidelines properly and form strict rules in regarding the employment of children to factories.
In Sheela Barse v. Union of India[9] the Supreme Court has ordered release of all children below the age of 16 years from jails in light of Article 39 (f). The Court directed the States to set up necessary remand homes and juvenile courts. A child is an asset to the nation and, therefore, “it is the duty of the State to look after the child with a view to ensuring full development of its personality.”
In Lakshmi Kant Pandey v. Union of India[10] the Supreme Court has given a very wide and liberal interpretation to the Constitutional Provisions and has directed Government to take various steps for child welfare. Reading Article 15, 24, 39(e) and 39(f), the Supreme Court has emphasized upon the importance of child welfare in India. By interpreting above articles, the Court has laid down detailed guidelines for the adoption of children by foreign parents as there was no statute for this purpose.
PUCL vs. Union of India and others[11], in 1998, dealt with the trafficking of children for labour. The court ordered that Rs. 200,000 be paid as compensation to the brother of a child who was trafficked for labour and beaten to death by the trafficker. Further, the court also ordered compensation of Rs.75000 is paid to three other boys who were also trafficked. While the states were asked to pay the compensation, they were also implored by the court to actively work towards eradicating trafficking of children for labour or else become responsible for compensating victims within their jurisdiction.
In Bachpan Bachao Andolan vs. Union of India and others[12], in 2011, the Supreme Court, while dealing with the working and living conditions of children working in circuses, stressed on the fundamental right of children to free and compulsory education, as enshrined in Article 21A of the Constitution. It directed the Central Government to issue notifications prohibiting the employment of children in circuses within two months, so as to implement the fundamental right to education. Directions were also given to conduct simultaneous raids in all the circuses to liberate the children and check the violation of fundamental rights of the children. The rescued children were to be kept in the Care and Protective Homes till they attain the age of 18 years. A proper scheme of rehabilitation of rescued children from circuses was sought.
In A. Srirama Babu vs. The Chief Secretary[13], (1997) the High Court of Karnataka was of the opinion that there should be a total ban on employing children below the age of 10 in any employment and that the law should also extend to children in the unorganized sector. Assisted by the Campaign against Child Labour (CACL), the court acknowledged the need to remove the distinction between ‘hazardous’ and ‘non-hazardous’ employments and stated that “Hazard is not to be understood as a physical threat or injury alone. If the consequence of the labour rendered by him renders the child a sick and prematurely aged person, such labour certainly causes hazard to the health of the worker”. Measures to ensure deterrence were also part of the court’s directions. These included non-renewal of license of an earring employer, denial of statutory benefits such as tax holiday, rebate, etc. and punishment or penalty under CLPRA to be in addition to those prescribed under other laws that may apply to an employer for employing children. The court also directed action against parents and guardians responsible for neglecting their children and their welfare.
In Court on its Own Motion v Government of NCT, Delhi[14], the Delhi High Court, in 2009, took note of the lack of implementation of the constitutional mandate and statutory provisions regarding children and the absence of coordination between different agencies of the Government of NCT of Delhi and other authorities. It directed the implementation of the Delhi Action Plan, as prepared by National Commission for Protection of Child Rights, by the Labour Department, with some modifications. The Action Plan provides a detailed plan for the interim care and protection of children rescued from labour, and details responsibilities of various authorities. The police have the power to arrest the employers of the child labour as well as the owners of the premises let out to such employers. In a situation where reports of physical, sexual and economic exploitation of 16-17 year old maid servants in cities like Delhi were on the rise, this judgement came as a great relief. The Court said that while the CLPRA would not be applicable to the rescue of children above the age of 14 years and the liberation of child workers from non-hazardous occupations, these situations would be governed by the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Bonded Labour System (Abolition) Act, 1976.
Combating child labour practice:
Children need moral and material security and understanding of their psychological needs. There are two main approaches to combat child labour –
- Traditional Approach – It emphasizes on legislations and their active and proper enforcement by various governmental agencies and their officials.
- New or Practical Approach – This approach may also be called comprehensive or pragmatic. Both the government and non-government organizations are involved in dealing with the problem. They provide protection to working children and trying to make the work ‘more humane’.
Principles underlying elimination of child labour:
- Schooling for learning and practical problem solving
- Integrated physical, mental and social development
- Protection to working children
- Making work creative and educated
- Working children should be made to feel themselves as agents of change.
- Employers can also contribute by stopping employing children and by obeying the rules and regulations.
Conclusion:
Though there being various Constitutional provisions and legislations for controlling child labour in India there is a problem in its implementation. The children are still being exploited and there has been recent increases in child labour statistics after the new amendment act has come into force i.e. Child Labour (Protection & Regulation) Amendment Act, 2016. The steps taken by the government to combat the menace of child labour shows that it totally desires to eliminate child labour. Despite such number of enactments and policies, it has been not a proper measure to control child labour. Child labour is still prevalent in India due to certain reasons i.e. poverty, low wages of the adults, unemployment, lack of education, migration to urban areas etc.
Without there being so many reasons no child would have to toil his life in pity and vain. Out of all causes, poverty is the basic reason which compels a parent to send his child to work. ”Otherwise, no parents, specially no mother, would like that a tender aged child should toil in a factory in a difficult condition, instead of it enjoying its childhood at home the paternal gaze.”[15]
Right to education has been a good scheme to combat child labour but there are still some major efforts needed by the government and the people. Both are responsible for the development of a child to reach ultimate goals in life and to schedule their nations on the path of prosperous growth. There is a major defect in implementation of the laws on ground level due to corruption and ignorance of law as a method.
Child labour as an activity has become a vicious cycle to attain its momentum till proper brakes of law are applied to it. Poverty is the reason and major cause for child labour which leads to lack of education and absence of literacy in the society. The lack of education further leads to unemployment and less skills due to lack of diligence to learn. This makes society more poor and uneducated. The scheme of free education to children has also not worked out fully into the terms as due to traditional attitudes of parents and families to not to send to schools and instead make them work as child labourers in the fields or in industries. There is an uneducated approach of parents for not sending schools to children to just fear as there is no guarantee of jobs in future. And instead make their child work in industries just to make up some family income.
The schemes related to mid-day meals, free
books and stationeries are working out their level gradually but that does not
seem to be implemented but in actual sense shall be implied. Ground level small
groups should be formed to keep a check on such implications of schemes. Other
than the government, there is also a responsibility upon individuals to state
to facts to the authorities of any such cruel acts of child labour being
carried out in the nearby areas of the society. There should be co-operation
between government and non-government organizations dealing with the menace of
child labour. There is also a suggestion to follow International norms in
respect of child labour related laws and take examples from the nations who
have already eradicated the menace of child labour from the society through its
stringent law and policy programme.
[1]Working Children, Census of India 2011
[2] Working Children, Census of India 2011
[3] Indian Factory Act, 15th April, 1881
[4] The National Commission on Labour 1969; The Gurupadswamy Committee on Labour 1976 and Sanat
Mehta Committee 1984
[5] Press Information Bureau, Government of India, MLD/L.53 (Cpi-iw) 1.8.2006.
[6] AIR 1982 SC 1473
[7] AIR 1984 SC 177: (1983) 2 SCC 181
[8] (1996) 6 SCC 756
[9] AIR 1986 SC 1773: (1986)3 SCC 596
[10] AIR 1984 SC 469: (1984) 2 SCC 244
[11] (1998) 8 SCC485
[12] AIR 2011 SC 3361
[13] ILR 1997 KAR 2269
[14] 163 (2009) DLT 641
[15] M.C. Mehta v. State of Tamil Nadu : AIR(1996) 6 SCC 756
Leave a Reply