Amending Law on Child Labour

Introduction

Children are future of tomorrow and they should be educated and not exploited. Exploitation comes in form of child labour, which may have been part of tradition in agriculture as helping hand initially, but today it extends to different sectors including hazardous industries. The Child Labour (Prohibition & Regulation) Act, 1986 (“CLPR Act”) prohibits employment of a child in 18 occupations and 65 processes and regulates the conditions of working of children in other occupations/ processes. As per this CLPR Act, a child means any person who has not completed 14 years of age and provides punishment for the offence of employing or permitting employment of any child in contravention of the provisions of this Act. However, the Right of Children to Free and Compulsory Education Act, 2009 (“RTE Act“) enjoins the State to ensure free and compulsory education to all children in the age group of 6 to 14 years. A corollary to this would be that if a child were in the work place, he would miss school. Thus, the CLPR Act is not aligned to the RTE Act as it permits employment of child below 14 years in occupations/processes not prohibited. Further, CLPR Act is not in conformity with the International Labour Organization (ILO) Conventions 138 (Minimum Age Convention) and 182 (Worst Forms of Child Labour), which provide for minimum age of entry into employment and prohibition of employment of persons below 18 years, in work which is likely to harm health, safety and morals. Additionally, the boys are engaged in factories and girls at home as child labour, the drop out and aggression at work leads to crime as well. In such as scenario, its important to re-look at child labour and the recent proposed amendment is worth discussion.

Recently, Union Cabinet has approved the Child Labour (Prohibition and Regulation) Amendment Bill, 2012. The Bill is still pending at the stage of Rajya Sabha. The article looks at the laws and pending amendment of child labour.

A. Child Helpline

The Child helpline number is 1098 (“Childline“). The centralized system of calls is based in Mumbai. After a call is received, the authority concerned is informed about the incident for follow-up action. In case, the child does not provide the address, after checking the number, the mapping of area is done to identify from where the call originated. Within one hour, the number is flashed to the city concerned, where its child welfare committee looks into the complaint. In some areas, the locals NGOs are also approached.

A detailed rescue report is also prepared.

B.  Legislations relating to Children

The Constitution of India lays down that:

Prohibition of traffic in human beings and forced labourArticle 23 Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law

Prohibition to Employment of Children-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.

Right to Education- Article 21A: The State shall provide free and compulsory education to all children of the age six to 14 years.

State Policy to Protect Tender Age- Article 39(e): The State shall direct its policy towards securing that the health and strength of workers, men and women and the tender age of children are not abused and that they are not forced by economic necessity to enter vocations unsuited to their age and strength.

State Policy for Healthy Development of Child-Article 39(f): Children shall be given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth shall be protected against moral and material abandonment.

Free and Compulsory Education-Article 45: The State shall endeavour to provide within a period of 10 years from the commencement of the Constitution for free and compulsory education for all children until they complete the age of 14 years.

The various legislations to achieve the above goals: Child labour is a matter on which both the Union Government under the Concurrent list and State governments under the State List can legislate. A number of legislative initiatives have been undertaken at both levels. The major national legislative developments include the following:

  1. The Factories Act, 1948:The Act prohibits the employment of children below the age of 14 years. An adolescent aged between 15 and 18 years can be employed in a factory only if he obtains a certificate of fitness from an authorized medical doctor. The Act also prescribes four and a half hours of work per day for children aged between 14 and 18 years and prohibits their working during night hours.
  2. The Minimum Wages Act, 1948:Prescribes minimum wages for all employees in all establishments or to those working at home in certain sectors specified in the schedule of the Act. Central and State Governments can revise minimum wages specified in the schedule. Some consider this Act as an effective instrument to combat child labour in that it is being used in some States (such as Andhra Pradesh) as the basis on which to prosecute employers who are employing children and paying them lower wages.
  3. The Mines Act, 1952:The Act prohibits the employment of children below 18 years of age in a mine. Further, it states that apprentices above 16 may be allowed to work under proper supervision in a mine.
  4. The Child Labour (Prohibition and Regulation) Act, 1986:The Act prohibits the employment of children below the age of 14 years in 16 occupations and 65 processes that are hazardous to the children’s lives and health. These occupations and processes are listed in the Schedule to the Act. In October 2006, the Government has included children working in the domestic sector as well as roadside eateries and motels under the prohibited list of hazardous occupations. More recently, in September 2008 diving as well as process involving excessive heat (e.g. working near a furnace) and cold; mechanical fishing; food processing; beverage industry; timber handling and loading; mechanical lumbering; warehousing; and processes involving exposure to free silica such as slate, pencil industry, stone grinding, slate stone mining, stone quarries as well as the agate industry were added to the list of prohibited occupations and processes;
  5. The Juvenile Justice (Care and Protection) of Children Act, 2000:This Act was last amended in 2002 in conformity with the UN Convention on the Rights of the Child covers young persons below 18 years of age. Section 26 of this Act deals with the Exploitation of a Juvenile or Child Employee, and provides in relevant part, that whoever procures a juvenile or the child for the purpose of any hazardous employment and keeps him in bondage and withholds his earnings or uses such earning for his own purposes shall be punishable with imprisonment for a term which may extend to three years and shall also be liable for fine. In some States, including Karnataka and Maharashtra, this provision has been used effectively to bring to book many child labour employers who are otherwise not covered by any other law and to give relief and rehabilitation benefits to a large number of children.
  6. The Right of Children to Free and Compulsory Education Act, 2009:Provides for free and compulsory education to all children aged 6 to 14 years. This legislation also envisages that 25 per cent of seats in every private school should be allocated for children from disadvantaged groups including differently abled children.
  7. Indian Penal Code Provisions

The provisions applicable on issues relating to Child labour depending upon facts of the case:

  • Kidnapping or maiming a minor for purpose of begging (Section 363B IPC)
  • Kidnapping or abduction to subject a person to slavery (Section 367 IPC)
  • Buying or disposing of any person as slave (Section 370 IPC)
  • Habitual dealing in slaves (Section 371 IPC)
  • Unlawful Compulsory Labour (Section 374 IPC)

C. Judicial Intervention

  1. Child Labor Rehabilitation Cum Welfare Fund: To eliminate the menace of the Child Labour and to effectuate the mandate of the Articles 23, 24, 39, 45 and 47 of the Constitution of India, the Supreme Court has given a mandatory directions in M.C. Mehta vs. State of Tamil Nadu[1] directed the employer to pay Rs. 20,000/- compensation for having employed a child below age of 14 years in hazardous work in contravention of CLPR Act. The appropriate government was directed to contribute to Rs. 5000/- to each such child development. Each such fund of Rs. 25,000/- would be deposited in the corpus of Child Labour Rehabilitation Cum Welfare Fund and such corpus would be used for rehabilitation of such child.
  2. Delhi Action Plan for Total Abolition of Child Labour: In Court on its own Motion vs. Government of NCT[2] the National Commission for Protection of Child Rights has submitted the aforementioned plan to the Hon’ble Court. The Commission identified that labour force in Delhi were either consisting of out of School Children or migrant children. The strategy also contemplated for Constitution of steering committee on child labour at State level and task force at district level. The roles and responsibilities for concerned department for this action plan was also defined. The following issues of Labour Department of the Delhi Government needs mention: CLPR Act prohibits occupation of the Children in certain scheduled occupation and process. According to labour department children in non-hazardous jobs cannot be rescued. Further, the action plan aforementioned involves rescuing child between age of 14-18 years although the CLPR Act involves only child below 14 years. The following rulings of the Hon’ble Court in the judgment needs special mention:

(a) Only child employed in Scheduled employment and process can be rescued and  only children below 14 years of age can be rescued.

(b) Juvenile Justice (Care & Protection of Children) Act, 2000 and Bonded Labour System (Abolition) Act, 1976 should apply to Children between 14 to 18 years of age in non-scheduled occupation and processes, if  applicable.

  1. New Directions Issued: The Hon’ble Delhi High Court in Seema Roy vs. Government of NCT[3] under which the following important directions were issued for curbing child labour in Delhi region:

(a) The Chief Secretary of Delhi Government should be involved to convene the meeting of all the stakeholders.

(b) Fixing of responsibilities of the officers so that action can be taken against them for any lapse.

(c) Orientation Programmes for various stakeholders of CWC so that they know their roles and responsibilities under different statutes.

(d) Compilation of all the directives in the form of books available to  stakeholders to avoid pleading ignorance.

(e) A proper rehabilitation scheme for rescued children so that they are not   forced to work again by parents.

D. International Labour Organisation

India is a signatory to the:

  • ILO Forced Labour Convention (No. 29);
  • ILO Abolition of Forced Labour Convention (No. 105);
  • UN Convention on the Rights of the Child (CRC) (1989);
  • UN Protocol to Prevent, Punish and Suppress trafficking in Persons (2000)

ILO Convention has important Conventions 138 and 182, which provide for minimum age of entry into employment and prohibition of employment of persons below 18 years, in work, which is likely to harm health, safety and morals. The important ILO Table on age of admission to employment and work mentioned on its website needs attention:

PARTICULARS DETAILS MINIMUM AGE AT WHICH CHILDREN CAN START WORK POSSIBLE EXCEPTIONS FOR DEVELOPING COUNTRIES
HAZARDOUS WORK Any work which is likely to jeopardize the child physical, moral and mental health, safety and moral health should not be done by a child under the age of 18 years 1816(Under strict Conditions) 1816(Under strict Conditions)
BASIC MINIMUM AGE The minimum age of work cannot be less than age of compulsory schooling and less than 15 years of age 15 14
LIGHT WORK Children between 13-15 years may do light work as long as the same does not threaten its health and safety or hinder their education or vocational or orientation training. 13-15 12-14

The cooperation between the ILO and the Government of India in the field of child labour started in the year 1992 with the signature of a Memorandum of Understanding (MoU). This agreement laid down the principles, areas and modalities of cooperation for the progressive elimination of child labour. Under the provisions of the MoU, the ILO’s International Programme on the Elimination of Child labour (IPEC) established a national programme, and a National Steering Committee (NSC) responsible for policy guidance and monitoring.

E. Proposed Amendments to National Laws

The official amendments to the Child Labour (Prohibition & Regulation) Amendment Bill, 2012 proposes to make the following salient amendments to the Child Labour (Prohibition & Regulation) Act, 1986 which prohibits the engagement of children in certain types of occupations and regulates the condition of work of children in other occupations.

  1. Age of Employment: Employment of children below 14 years prohibited in all occupations and processes.
  1. Exception to Age of Employment subject to not affecting Education: Exception has been made:

a) Helping in Non-Hazardous Family and Family Enterprises after School: Where the child helps his family or family enterprises, which is other than any hazardous occupations or processes set forth in the Schedule, after his school hours or during vacations;

b) Entertainment Industry: where the child works as an artist in an audio-visual entertainment industry, including advertisement, films, television serials or any such other entertainment or sports activities except the circus, subject to such conditions and safety measures, as may be prescribed and provided that such work does not affect the school education of the child.

In a large number of families, children help their parents in their occupations like agriculture, artisanship etc. and while helping the parents, children also learn the basics of occupations. Therefore, the amendment is striking a balance between the need for education for a child and the reality of the socio-economic condition and social fabric in the country.

3.Amendment to Definition of Adolescent: A new definition of adolescent has been introduced in the CLPR Act and employment of adolescents (14 to 18 years of age) has been prohibited in hazardous occupations and processes.

4. Amendment to Punishment for Stricter Violation: Stricter punishment for employers for violation of the Act has been proposed to act as a deterrent.

a) First Offence: In case of first offence of employing any child or adolescent in contravention of the Act, penalty would be imprisonment for a term not less than six months but which may extend to two years or with fine not less than Rs.20,000/-, but which may extend to Rs.50,000/- or with both.

b) Second Offence: In case of a second or subsequent offence of employing any child or adolescent in contravention of the Act, the minimum imprisonment would be one year which may extend to three years.

c) Cognizable Offence: Offence of employing any child or adolescent in contravention of the Act by an employer has been made cognizable. This provision would act as a deterrent against the offence of employing a child or adolescent in contravention of the Act.

d) Punishment for parents/guardians: In the Principal Act, the same punishment was provided for parents/guardians for permitting a child to work in contravention of the Act, as prescribed for the employer of the child. However, taking a realistic view of the socio-economic conditions of the parents/guardians, there would be no punishment in case of a first offence by the parents/guardians and in case of a second and subsequent offence, the penalty would be a fine which may extend to Rs.10,000.

5. Constitution of Child and Adolescent Labour Rehabilitation Fund: Rehabilitation Fund for one or more districts for the rehabilitation of the child or adolescent rescued. Thus, the Act itself will provide for a fund to carry out rehabilitation activities.

Conclusions

India already has largest number of child labors, which is a number of concerns for stakeholders, families whose child are involved and the system. The various efforts to maintain right to life and personal liberty of a child needs mention:

  • The Child helpline Number is 1098
  • The new right to education is another right whose implementation requires necessary amendment to CLPR Act.
  • Child Labour rehabilitation cum welfare fund and its utilization for benefit of child is important.
  • Delhi has an action plan for total abolition of child labour and the new judgment of Seema Roy (Supra) fixes the responsibility for each officials further.
  • With the proposed amendments, India is closer to ILO Convention.
  • Proposed amendment would bring change in age of admission to employment, better implementation to right to education, stricter punishments for violators including parents and guardian and creating of rehabilitation fund as statutory corpus.

 

[1] AIR 1997 SC 699

[2] W.P 9767 of 2009

[3] W.P Crl 1548 of 2015

Published :
December 30, 2015
Practice Area :