35 Child Labour Laws

Jhuma Sen

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Introduction:

Child labour can be classified as the practice of involving or engaging children in any form of economic and on several cases non- economic activities, which may be full time or part – time labour. This kind of labour takes away the childhood and has several harmful effects on the physical and mental development of a child. The several common reasons for child labour is poverty, lack of availability of schools in India. Not all form of work done by a child is considered to be child labour, work that does not interfere with the education of a child and does not have a harmful effect on their health mentally or physically is not really considered to be child labour. This kind of work include like helping parents or family business or even for a matter of fact to earn a pocket money after school, or during vacations,these kind of work is considered to be something positive for the development and the growth of the child.

The term child labour is defined for the work that would restrict children from receiving education because they are working or would have an adverse effect on the child mental and physical life. The kind of work may include the following:

  • Work that would lead to a degradation of mental, physical or moral and social life of children,
  • It would bring a bar or would interfere with the schooling of the child,
  • The work that would restrict them from attending school permanently,
  • Even if they are in a school, it would along with the long school hours want the children to work long hours and over burden them.

In the harshest forms, child labour would want the children to move away from their families and the kind of work that would expose the children to serious hazardous work that would further deteriorate their health and lead to several serious illnesses. If a certain kind of work can be categorized as child labour actually depends upon the age of the child.

The Indian laws like the Child Labour (Prohibition and Regulation) Act, 1986 says that any employment that is done by children below the age of 14 and 15 years of age in certain kinds of employments is prohibited by several act but there is no procedure as such that lays down laws that would define what form of employment should be banned for children. There were no such laws that would regulate the working conditions of the children and to achieve this question was actually why the Act came into existence. Though after the years came by there were several other acts that do specify and classify the forms of child labour.

Different definitions provided by several institutions of child labour:

ILO: The International Labour organisation, defines that child labour can be best defined as the work that would deprive any child of their childhood, their potential to work and further their dignity and would have a very adverse effect on the mental and physical development of a child. Labour in this context refers to the work that a child would do and which would have an impact on the physical, mental, social and moral background of the child.

UNICEF: It suggests that a child would be said to be a child labour if activities are done by the child between the age of 5 to 11 years, he or she would either do at least one hour of economic activity or at least 28 hours of domestic work in a week. For children aged between 12 to 14 years, he or she might have done at least 14 hours of economic activity or 42 hours of economic or 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 defines child labour as the involvement of a child below the age of 17 years of age in any form of economic activity in which he/she might or might not be compensated or with wage or profit.

Learning Outcomes:

After completing this chapter, students should know and understand:

  • The basic Child labour laws in India,
  • Why do children work?
  • Consequences of Child Labour,
  • Amendments suggested to be brought in Child labour laws.

Child Labour laws in India:

After the country has received Independence, there are many rules, laws and several constitutional protections on child labour laws. The main purpose of these laws and constitutional provisions is to protect children and from preventing them to abandon from their childhood, also from preventing them from having an adverse effect on their health physically and mentally.

Constitutional Provisions: The Constitution of India, through its various articles has laid down several Fundamental Rights and Directive Principles of State Policy that lays down laws relating to Child Labour:

  • Article 24 says that no child below the age of 14 years shall be employed in a factory or mine or shall be engaged in any hazardous employment.
  • Article 39-e states that the State shall have its public policy towards the securing the health and strength of the workers, men, women and children who are of tender age so as to check that they are not abused and that they are not forced by the economic necessity to work that are not suited for their age.
  • Article 39-f provides that children would be given opportunity and would be provided with proper facilities so as to develop them in a healthy way and conditions of freedom and dignity so as to protect their childhood and young age shall be protected against being abandoned materially and morally.

Few other provisions of the Constitutionprovide that there should be free and compulsory education that needs to be provided to the children, which indicates that children are supposed to be at school and not at work place:

  • Article 21–A provides that every child up to the age of 14 years of age should be provided with free and compulsory education.
  • Article 45 provides that the State shall make sure that within a period of 10 years from the commencement of the Constitution of India it shall provide free and compulsory education for all the children till the age of 14 years.

The child labour (prohibition and regulation Act, 1986) prohibits children below the age of 14 years to work in any occupation as per Section 3 of the act. Section 5 provides for the appointment of Child Labour Technical Advisory Committee by Central Government to process the schedule of the act. Under Section 7 (4) of the act, no child is allowed to work between 7 p.m. and 8 a. m. Section 14 deals with penal measure, to employer, that amounts for imprisonment for three months that may be extendable per one year or a fine by less than ten thousand rupees or both.

The Child Labour (Prohibition and Regulation) Act, 1986 is now re-titled as the ‘Child and Adolescent Labour (Prohibition and Regulation) Act, 1986’ (“Child Labour Act”), in order to reflect its expanded scope and coverage. India is a signatory to the ‘United Nations Convention on the Rights of the Child’ which aims at protecting the interests and rights of children. Although, the International Labor Organization has enacted 5 Conventions such as the Minimum Age Convention, 1973 and Worst forms of Child Labour Convention, 1999 with the objective of eliminating child labour, India has not yet ratified the aforementioned convention The important revisions to the Child Labour Act as a result of the 2016 Amendment Act are as follows:

  1. Definition of ‘child’: The 2016 Amended Act has brought the law in sync with the Right to Education Act by amending the definition of ‘child’ to mean a person who has not completed 14 years or such age as specified under the Right to Education Act, whichever is higher. This definition however continues to remain different from the definition of ‘child’ as per the Factories Act, 1948.
  2. Prohibition on employment of adolescents: New provision prohibiting employment of adolescents in hazardous occupations and processes introduced.
  3. Child labour made a cognizable offence: Any offence committed by an employer which is punishable under the Child Labour Act has been made a cognizable offence. Accordingly, the authorities can file a first information report and commence investigations into the offence without a court order and can arrest without a warrant.
  4. Punishments for contravention enhanced: While the punishment for employers has been significantly enhanced, the punishment for parents / guardians has been relaxed

Factories Act, 1948: This Act restricts the employment of any child of theage of 14 years or below. An adolescent aged between 15 to 18 years can be employed in a factory if he or she is able to attain a fitness certificate from an authorized medical doctor. The Act provides that the working hours should be four and half hours for children aged between 14 to 18 years and restricts night shift work.

The Mines Act, 1952: The Act prohibits or restricts employment of children who are below the age of 18 years to work in a mine. Further, it states that children who are above the age of 16 years are allowed to work only under special supervision.

The Juvenile Justice (Care and Protection of Children) Act, 2015

This act has come into force from today and repeals the earlier Juvenile Justice (Care and Protection of Children) Act, 2000. The Juvenile Justice (Care and Protection of Children) Bill, 2015 was passed by Lok Sabha on 7th May, 2015; was passed by Rajya Sabha on 22nd December, 2015 and received Presidential assent on 31st December, 2015.

The The Juvenile Justice (Care and Protection of Children) Act, 2015 provides for strengthened provisions for both children in need of care and protection and children in conflict with law. Some of the key provisions include: change in nomenclature from ‘juvenile’ to ‘child’ or ‘child in conflict with law’, across the Act to remove the negative connotation associated with the word “juvenile”; inclusion of several new definitions such as orphaned, abandoned and surrendered children; and petty, serious and heinous offences committed by children; clarity in powers, function and responsibilities of Juvenile Justice Board (JJB) and Child Welfare Committee (CWC); clear timelines for inquiry by Juvenile Justice Board (JJB); special provisions for heinous offences committed by children above the age of sixteen year; separate new chapter on Adoption to streamline adoption of orphan, abandoned and surrendered children; inclusion of new offences committed against children; and mandatory registration of Child Care Institutions.

Section 79. Notwithstanding anything contained in any law for the time being in force, whoever ostensibly engages a child and keeps him in bondage for the purpose of employment or withholds his earnings or uses such earning for his own purposes shall be punishable with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine of one lakh rupees

The Minimum Wages Act, 1948: This Act provides the minimum wage for all kinds of employment in all kinds of establishments and also for those who are working in at home if that work is specified in the schedule of the Act. The State and the Central government are given the privilege to amend and revise the minimum wages. This Act is used as a very key tool to prevent children who are working and are paid less and receive lower wages than that is provided in the Act.

Why do children Work?

This question that is not difficult to answer in a country like India. The following are the reason that clearlyshows and are the reality that leads to Child Labour:

How necessary is child labour for Indian families?

Child labour is a source of income for the poor families. It has been found that child labour does contribute to the maintenance of family’s economic level, either child working in return for wages or helping out in the household to free the adults from work. It has been discovered through various studies that child labour makes a very important part of the family income. Even though these children work in order to support their families, they are paid comparatively less than what exactly the adult counterpart is paid for the same work and for the same amount of time, here is where the Minimum wages Act comes into play. What this act does is that it prohibits the differentiated income along with prohibiting children from working. The employers, on the other hand, take the defence to pay less to the children by saying that children get equally paid like, or defence like children work comparatively slower and less than the adults. Parents may not really want to send their children to work but they will surely accept the fact that it is kind of a need than choice in order to sustain a basic living.

What role does poverty play for child labour?

Indian poverty ratio and the percentageare comparatively high, and poverty has a direct link with child labour. Families need money to survive, and children become a source of income. In the rural areas,there are families who live in such poverty and yet have four to five children; all these children are sent to work because only one earning member cannot feed the entire family and for these reasons, these children after attaining a certain age are sent to work.

Even though poverty is categorised as one of the most important reasons for poverty, that is though not the only reason, and there are several other reasons that actually lead o child labour. One of the reasons is lack of proper schools that could actually provide free education to the children who cannot afford the same. The other being the attitude that the parents have, certain parents feel that children should actually start to work in order to develop certain skills and enter the work environment instead of wasting their time on a formal education. They feel that children would learn faster if they enter and start to work than actually what they would have learnt in school or through any formal education.

Consequences of Child Labour:

Having a large number of child labour is said to be bad for the economic welfare of a country. To have a growing economy, it is very important to have a more educated sector with proper skills that are needed in the industry. Educated children would contribute to the capital of the country in the future and if children do not get educated that would lead to a trade off of human capital. Children who start to start to work at an early age are not capable of receiving aproper education. Since they remain uneducated, they do not have opportunities for jobs and being recruited in their future. Regarding the physical, mental and emotional growth these children who start to work at an early age suffer and are the less advantaged as compared to the other children. Working at several places may cause diseases especially if these children are not working at a hygienic place. Children who take up to work for any reason remain illiterate for the rest of their lives thus limiting their own ability.

Maximum of the children working are involved with agriculture or in some low skilled labour sector industry or like domestic helpers. This kind of work needs no education and training. According to the ILO (International Labour Organisation) had surveyed and said that there are huge benefits for developing countries to have children sent to school rather than working. Without school, these children are not able to and will never be able to contribute majorly to the development of the country.

Suggested amendments in Child Labour laws: The Union Cabinet approved provisions of the Child Labour (Prohibition and Regulation) Amendment, 2012. There are certain things that are very important to know in the suggested amendment:

  1. According to this amendment all children below the age of 14 years cannot be employed in any hazardous industry rather, they can only be employed in a non hazardous family enterprise, or they can be employed in an entertainment industry. The original laws had laid down that only in the categorised 18 hazardous industries were children below the age of 14 restricted to work.
  2. The amendments have given the parents relaxations from penal provisions, earlier parents were subjected to the same form of punishments as the employer, but through the amendment, the parents would only be punished with a monetary fine if they become repeated offenders.
  3. Employers would be penalised even for their first offence:
  • In case of them making their first offence, the penalty for the employers have increased, and it would be some amount between 20,000 and 50,000 along with imprisonment for a term that would not be less than six months, and it could also extend to two years.
  • If the employer commits the second offence of employing any child or an adolescent that contravenes the laws, the minimum imprisonment will lead to one year, and it could extend up to three years.
  • Previous laws make the employer liable for an imprisonment of minimum six months, and that could extend up to two years if they employed children and contravened the laws.
  1. In the amendment, the definition of adolescent has changed, and it has been said that adolescent aged between 14 years to 18 years are prohibited to be employed in any hazardous occupation or processes.
  2. Employing of an adolescent in any hazardous occupation or processes has been made to be a cognizable offence, which means that the police can arrest the employer without a warrant.
  3. The Act further provides that there should be rehabilitation funds that should be collected which would actuallybe used for carrying rehabilitation activities.

Conclusion:

It can be rightly said that Child labour is an issue and a significant problem in a developing country like India. The rates of child labour in India are very high, and the major reason for such high rates is due to poverty. It has become a vicious cycle, poor families do not are incapable of educating their children, and thus these children start to work and never get proper education thus their financial conditions mostly do not change, and their future generations also have to face the same consequence. Along with poverty, other reasons like lack of education provisions is another key factor of child labour since there are not easily accessible education provisions which are possibly a weak point of the government as they many times fail to provide schools that could provide free and compulsory education to children.

Child labour cannot be eradicated or removed by just focusing on one of its determinants it is kind of a process, and it needs to have a full-fledged program and initiative by the government and a lot of participation by the Non- Government organizations. Only by providing education child labour cannot be eliminated because of several reasons, one being that parents who send their children to work have either sent them because they want their children to gain some skills or because they themselves are not educated to understand that how important education could actually be. Therefore there has to be measures to help remove poverty to educate parents and why there is a need for putting a complete ban on child labour.

This has become a cycle where child labour is born in every generation, and this can only be removed by extensive measures and lot of determination through wide programs; it might take several years to do the same.

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Reference

  • http://www.nishithdesai.com/information/research-and-articles/nda-hotline/nda-hotline-single-view/article/indias-law-on-child-labour-prohibition-revamped.html?cHash=4ca42b17cd1e65d9562e7129c1ac3573&no_cache=1
  • http://www.mondaq.com/india/x/399028/employee+rights+labour+relations/Indias+Law+On
  • http://ncpcr.gov.in/showfile.php?lid=66
  • http://nhrc.nic.in/bib_child_labour.htm
  • http://www.thecitizen.in/index.php/OldNewsPage/?Id=3981&India/Erupts/Over/Loopholes/i n/Child/Labour/Law