A REPORT ON CHILD LABOUR IN INDIA

This article was written by Srinath Sambangi, a student of ICFAI Law School, Hyderabad.

INTRODUCTION

“Child” as defined by the Child Labour (Prohibition and Regulation) Act, 1986 is a person who has not completed the age of fourteen years. A child of such tender age is expected to play, study and be carefree about his life. But as a fact of nature, expectations hardly meet reality. Children, by will or by force are employed to work in the harsh conditions and atmosphere which becomes a threat to their life. Child Labour leads to underdevelopment, incomplete mental and physical development, which in turn drastically affects the growth of children.

DEFINITIONS

International Labour Organization (ILO) defines the term child labour as, “work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. It refers to work that is mental, physically, socially or morally dangerous and harmful to children, or work whose schedule interferes with their ability to attend regular school or work that affects in any manner their ability to focus during school or experience a healthy childhood.

UNICEF defines child labour differently. A child, suggests UNICEF, is involved in child labour activities if between 5 to 11 years of age, he or she did at least one hour of economic activity or at least 28 hours of domestic work in a week, and in case of children between 12 to 14 years of age, he or she did at least 14 hours of economic activity or at least 42 hours of economic activity and domestic work per week. UNICEF in another report suggests, “Children’s work needs to be seen as happening along a continuum, with destructive or exploitative work at one end and beneficial work – promoting or enhancing children’s development without interfering with their schooling, recreation and rest – at the other. And between these two poles are vast areas of work that need not negatively affect a child’s development.”

India’s Census 2001 office defines child labour as, “participation of a child less than 17 years of age in any economically productive activity with or without compensation, wages or profit. Such participation could be physical or mental or both. This work includes part-time help or unpAaid work on the farm, family enterprise or in any other economic activity such as cultivation and milk production for sale or domestic consumption. Indian government classifies child labourers into two groups: Main workers are those who work 6 months or more per year. And marginal child workers are those who work at any time during the year but less than 6 months in a year.”

CAUSES

Child Labour persists even though laws and standards to eliminate its existence. There are many reasons as to why Child Labour is still a social evil in India. Major causes of child employment that can be understood keeping in mind the Indian scenario, are:

POVERTY:

In developing countries, it is impossible to control child labour as children have been considered as helping hand to feed their families, to support their families and to feed themselves. Due to poverty, illiteracy and unemployment parents are unable to bear the burden of feeding their children and to run their families. So, poor parents send their children for work in inhuman conditions at lower wages.

In Labourers, Salal Hydro Project V/s State of Jammu and Kashmir[1]  , Bhagvati J. with R.S Pathak and Amrendranath J.J delivered a valuable decision to protect the interests of large numbers of Child Labourers working in the construction of Salal Hydro Project, a hazardous work. The court was constrained to remark that the problem of child labour is a difficult problem and is purely an account of economic reasons that parents often want their children to be employed in order to be able to make both ends meet. The Court said it’s an economic problem and it cannot be solved merely by legislation. So long as there are Poverty and economic problems, the need to eradicate child labour will be difficult.

PREVIOUS DEBTS:

The poor economic conditions of people in India force them to borrow money. The Illiterate populations go to money lenders and sometimes mortgage their belongings in turn of the debt taken by them. But, due to an insufficiency of income, debtors find it very difficult to pay back the debt and the interest. This vicious circle of poverty drags them towards working day and night for the creditor and then the debtors drag their children too in assisting them so that the debts could be paid off.

PROFESSIONAL NEEDS:

There are some industries such as the ‘bangle making’ industry, where delicate hands and little fingers are needed to do very minute work with extreme excellence and precision. An adult’s hands are usually not so delicate and small, so they require children to work for them and do such a dangerous work with glass. This often resulted in major eye accidents of the children, directly and indirectly, gave these children a distorted ability to think creatively as their thought of thinking and creativity were usually not used in the monotonous nature of the factories.

In M.C Mehta V/s State of Tamil Nadu[2], it was held that children can be employed in the process of packing, but the packing must be done away from the place of manufacture to avoid exposure to an accident. The tender hands of the children were more suitable for packing and other misc. activities

LEGISLATIONS

When in the 20th Century, child labour became so prominent that news of factory hazards and mishappenings taking innocent children’s life, flashed all around in the newspapers, then was the time, a need for legislation and statutes were felt to prohibit the malpractice of child labour. Today, there are sufficient statutes defining, condemning and prohibiting child labour such as:

The Factories Act of 1948: The Factories Act, 1948 is a vast and an extensive act that covers many aspects that concern the labour. The following are provisions relevant to children aged 0-18. This act defines a child as to someone who has finished 15 years of his/her age. It also defines an adolescent as a person has completed the age of 15, but not reach the age of 18. This act says that the word ‘young person’ is defined as either a child or an adolescent. This act states that every adolescent or a child who has an opportunity to work in an industry must get checked by a certified medical practitioner who then advises whether he/she is fit to work in that industry. These examinations take place when there is a threat to the life. Under this act, a young person may not clean or lubricate the parts of any machinery that is likely to cause an injury.

A Factory means any premises including the precincts where 10 or more workers are working or were working on any day of the preceding 12 months and any part of which a manufacturing process is being carried with the aid of power, or is ordinarily so carried on; or Where 20 workers or more are working or were working on any day of the preceding 12 months and any part of which a manufacturing process is being carried without the aid of power, or is ordinarily so carried on.[3]

It does not include a Mine subject to the operations of Mines Act, 1952 or a mobile united belonging to the armed forces of the union, a railway running shed or hotel, restaurant or eating place.

This act is basically concerned with the employment of young person’s on dangerous machinery. Dangerous machinery is a kind of machinery which when not taken proper care of, may turn fatal to the operator of it. It states that a young person is not to be compelled to work with dangerous machinery unless they have prior knowledge about it, and are under constant supervision of a qualified trainer. It also states that a child is absolutely prohibited from using machinery such as cotton opener.[4]

Chapter VII of the act emphasizes the employment of young persons. It states that no person below the age of 14 will be allowed and required in a factory. It also says that the adolescent workers must carry a token stating that they have been allowed to work, and are physically competent to work in the industry by a certified medical surgeon. The medical surgeons can only give a physically and mentally fit certificate only for a period of 12 months which later can be renewed by re-examination and also be revoked if it convinces the authorities that an adolescent is not medically fit anymore. The act may deem adolescents as adults under few provisions of the act and an adolescent who has not been deemed to be an adult is still a child.

This act not only talks about who can work where, it also determines the timings of adolescents who have been deemed to be an adult to be from 6 A, M to 7 P.M unless the state government decides otherwise, and the children who have not been deemed to be an adult shall not be allowed to work for more than 4 and a half hours in the daytime and cannot work in the night time. They aren’t allowed to work in two shifts and cannot work in two factories at the same time. A manager must record the timings of all the children and also have a track of the medical certificates and must make notes on their performance. Parents/Guardians can be fined by the authorities for sending their children to work in more than two factories if found. It is said that a young person must not work in any manufacturing processes.

Children who have worked more than 240 days in the previous calendar year are allowed to take a paid leave for every 15 days.

This act is the first act to have provisions relating to persons who have not attained the age of 18 years.

In M.C Mehta V/s State of Tamil Nadu [5], it was held that children can be employed in the process of packing, but the packing must be done away from the place of manufacture to avoid exposure to an accident. The tender hands of the children were more suitable for packing and other misc. activities. It was also decided that the wages to the children working must be fixed and paid on a timely basis.

The Mines Act of 1952- This act is governed and administered by the Ministry of Labour. This act contains provisions regarding measures relating to the health, safety and welfare of workers in the coal and oil mines. This Act prohibits children under the age of 18 years to work in a mine. To get into details,

The Act prohibits the employment of children below 18 years of age to be present in an underground or an open cast mine. [6]

The Act prohibits any person below the age of 18 to be in any mine above the ground, where any operation connected with or incidental to any mining operation being carried out.   Section 45, The Mines Act, 1958

This Act also provides for the appointment of Chief Inspector and Inspectors so as to ascertain that the rules and the by-laws, regulations, provisions and orders made under the Act are observed

The Juvenile Justice (Care and Protection) of Children Act of 2000: This law made it a crime, punishable with a prison term, for anyone to procure or employ a child in any hazardous employment or in bondage. This act provides punishment to those who act in contravention to the previous acts by employing children to work. To go into the details:

This Act defines that a child is a person who has not completed the age of 18 years. [7]

This Act also gives Punishment for exposing children to cruelty which causes mental and physical torture. There are many heinous occupations that are a cruelty to children. It prescribes a punishment of 6 months and fine.  [8]

This act talks about the punishment given for employment of children in prohibited industries. It prescribes the punishment to be 3 years along with a fine[9].

It provides punishment for exploitation of a child by hazardous employment and it describes a punishment of 3 years.[10]

The Right of Children to Free and Compulsory Education Act of 2009: The law mandates free and compulsory education to all children aged 6 to 14 years. This legislation also mandated that 25 per cent of seats in every private school must be allocated for children from disadvantaged groups and physically challenged children.

The Child Labour (Prohibition and Regulation) Act of 1986: The Act prohibits the employment of children below the age of 14 years in hazardous occupations identified in a list by the law. The list was expanded in 2006, 2008.

An amendment to the act in the year 2016 changed the existing law by letting children below the years of 14 to work in a non-hazardous environment such as family enterprises and also the A/V Entertainment Industry.

In People’s Union for Democratic Rights V/s Union of India  [11], commonly known as Asiad Workers Case, it was brought to the notice of the Supreme Court that children below the age of 14 are employed in the construction industry. It was held that construction work is clearly a hazardous occupation and it is absolutely essential to prohibit children under the age of 14 to work in any kind of construction work. The judgment was quite essential and was an eye opener about the lacunae of the law and the need to reform. Construction was added to the prohibited list in part A of schedule to the Child Labour Act, 1986.

CONSTITUTIONAL PROVISIONS REGARDING CHILD LABOUR:

The Pre-Constitutional era had a very less no. of laws and Acts relating to the Rights, Protection of children and the punishments given to the people employing children under the age of 18. During this time, it was realized and the State becomes fully conscious of its responsibility towards children. This realization has reflected some of the provisions that are provided by the Constitution. It was then also realized that children and youth remain to be the most populous age group in the country and there has to be something done to lay down the laws. Our Lawmakers were wise enough to provide that children should receive distributive justice in India. The rights against the exploitations were also mentioned in the draft proposed by Dr B.R Ambedkar, M. Munshi and K.C Shah. While Ambedkar’s draft simply provided that subject a person to forced labour or involuntary solitude would be an offence, K.M Munshi’s draft article suggested for the abolition of all forms of slavery, child labour, traffic in human beings and forced labour. [12]

There was a commitment and it was enshrined in the Preamble and various other articles in the Constitution:

Article 24: “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”

Article 39(e):  “The health, strength of workers, men and women, the underage of children are not abused and that the citizens are not forced by economic necessity to enter a vocation unsuited of their age and capacity”

Article 39(f): “That childhood and youth are protected against exploitation and against moral and material abandonment”

Article 15(3) empowers the state to make special provisions for children.

Article 23 is general prohibits in traffic in human beings and forced labour.

HOURS OF PERIOD AND WORK

The Child Labour (Protection and Regulation) defined the no. of hours a child can work in order to lessen the burden on them.

No child shall be required or permitted to work in any establishment in excess of the number of hours prescribed.[13]

The period of work on each day shall not exceed three hours and no child shall work for more than three hours before he has had an interval for rest for at least one hour. No child shall be permitted or required to work between 7 p.m. and 8 a.m.

No child shall be required or permitted to work overtime.

It also says that double employment of them is banned. So, a child cannot take employment elsewhere simultaneously while working with an employer.

PENALTIES

Punishments and Penalties before the amendment to Child Labour (Protection and Regulation) Act were imposed on both the parents and the employers who were to pay the same amount of fine to compensate for their mistake. However, the new amendments in 2016 relaxed the punishment on the parents and only impose a penalty on them if they are repeat offenders. If the parents are found to be repeat offenders, they may be penalized an amount of Rs. 10000/- for every act.

The employers of the Child Labour in prohibitive industries or occupations will, however, face a penalty even for a first offence.

In case of the first offence, the penalty for employers has been set as Rs. 50000/- in monetary compensation and imprisonment for a term not less than 6 months but may extend to a period of two years.

EFFORTS BY GOVERNMENT OF INDIA TO CONTROL CHILD LABOUR:

The child labour (Prohibition and Regulation) Act 1986 prohibits the employment of children below the age of 14 years in 16 occupation and 65 processes that are hazardous to the children’s lives and health. Many states including Haryana have constituted the child labour rehabilitation –cum-welfare funds at the district level and separate labour cells are being formed to address the issue. National child labour projects have been implemented by the central government in states from 1988 to provide non-formal education and pre-vocational skills. From 2001, Sarve Shiksha Abhiyan has been launched to educate poor and employed children in all states. Ministry of women and child development has been providing non-formal education and vocational training. Establishment of Anganwadies is also a big step by the government for the welfare of children and their physical, mental and educational development.

Recently, the Government of India proposed and passed a few amendments in The Child Labour (Protection and Regulations) Act, introducing stricter punishments and redefining adolescents. The Amendment basically says that children below the age of 14 cannot be employed anywhere except in non-hazardous family enterprises or Audio-Visual entertainment industry.

This recent move is taken as well as the people realized that the government considers child labour as a social evil and is taking up the required measures to eradicate it for a better future.

CONCLUSION

Child Labour is a social evil that has been in existence since the old times in the name of child slavery. Back then, it was considered that the children born to those slaves will already be under the ownership of the people who owned the slaves. Nobody slammed this practice or did they try to bring any change regarding the same. It was also considered a Win-Win situation for both parents and the employers because poverty and unemployment were common. The parents let their children as slaves as it made it easy for them to survive on the meagre household income. This was also advantageous to the owners as child slaves came at a cheap price and finished the tasks assigned to them without complaining or revolting. As the time moved on, people started realizing the acts done against children and disadvantages of it. Many evils such as child marriages and other atrocities against children are eradicated very well in the society. The British imposed many laws changing the laws and customs against children in India. Many years and legislation later, the country has come off to the age.

Modern India: The country that aspires to be a superpower cannot still eradicate child labour completely. This is obviously due to the reasons mentioned above such as poverty, unemployment and lack of money which obviously is interrelated to each other and one gives rise to another means. The governments that were there and the current government have indeed pulled all the strings in order to work for child welfare. Even if the idea of child labour is not abolished, the evils that come with are abolished. Factories and Industries that employ this category of labour even goes up and performs CSR activities such as providing them with proper education and vocational training to them in order to give something to the society and not just take something from it. This can be seen as a good change in attitude and outlook of children and the cause of child labour. Even though there is a scope for improvement, one needs to realize that the situation is far better than what it was. As recent as 2016, we can see that the government still sees child labour as a problem which is significant by the amendments made. At this change and rate, child labour can be eradicated in the coming days without a problem and it will be advantageous for the country in the future.

If awareness about the cons and disadvantages of child labour is spread across the nation, when people acknowledge that there exists a social evil called Child Labour and also if there is a strict policing of implementation of existing laws are done, India can combat the issue of Child Labour. Every individual, government, pressure groups must understand how important it is for the children to grow and study, as they are the ones who will shape the future of the nation.

[1]              (1983)2 SCC 181; AIR 1984 SC.177

[2]          (1991) SCC 299

[3]          Section 2(m), The Factories Act,1948

[4]              Section 23, The Factories Act, 1948

[5]              (1991) SCC, 283: 1991 SCC 299

[6]              .Section 40, The Mines Act, 1958

[7]              Section 2(k), The Juvenile Justice Act of 2000

[8]              . Section 23, The Juvenile Justice Act of 2000

[9]              . Section 24, The Juvenile Justice Act of 2000

[10]           Section 26, The Juvenile Justice Act of 2000

[11]           AIR 1982 SC 1473: (1982) 3.SCC 235; 1982 SCC (L&S) 275

[12]        . The framing of Constitution- A Study, Vol. V. p.243

[13]        Section 7, Child Labour (Protection and Regulation) Act