This chapter will enable students to:
- Describe the legislative framework concerning child labour prior to the enactment of Child Labour (Prohibition and Regulation) Act, 1986, and the Constitutional safeguards available to them
- Understand the factors and forces leading to the enactment of the Child Labour (Prohibition and Regulation) Act, 1986
- Describe the occupations and processes in which employment of children below 14 is prohibited under the Act
- Describe the provisions of Child Labour (Prohibition and Regulation) Act, 1986, relating to regulation of the conditions of employment of children where their employment is not prohibited
- Present an assessment of the Child Labour (Prohibition and Regulation) Act, 1986
A global phenomenon of industrialization in its formative years has been the exploitation of child labour. Long working hours, meagre wages, unhealthy and dangerous working conditions contributed to making life pitiable for child labourers. The pitiable conditions of child labour were the first to receive attention of the makers of factory legislation, who took the lead in providing protection to child labour against the excesses of early industrialism. The first of such legislation was adopted in England in 1802 in the form of Health and Morals of Apprentices Act which marked the beginning of factory legislation in the world.
In India, a beginning in the regulation of child labour was made in 1881 when the Indian Factories Act of that year prohibited the employment of children less than 7 years of age in factories and fixed their maximum hours of work at 9 in a day. A series of Factories Acts that were subsequently enacted gradually raised the minimum age of employment to 14 years, and progressively lowered their daily and weekly hours of work. Other regulations related to their night work, employment on dangerous machines or processes, rest intervals, weekly holiday and medical examination. Similar provisions were incorporated in the Mines Acts, which came to be enacted since 1901. The Mines Acts prohibited their underground work also. Other laws prohibiting employment of children under prescribed ages and regulating the employment of those whose employment has not been prohibited have been Plantation Labour Act, 1951, Motor Transport Workers Act, 1961, Beedi and Cigar Workers (Conditions of Employment) Act, 1966, Minimum Wages Act, 1948, Merchant Shipping Act, 1958, and Shops and Establishments Acts. These laws have been general in character and regulated the conditions of work and employment of all categories of workers including children in the respective establishments.
Prior to the enactment of the Child Labour (Prohibition and Regulation) Act, 1986, labour laws dealing exclusively with child labour have been: (i) Children (Pledging of Labour) Act, 1933, and (ii) Employment of Children Act, 1938. Child labour legislation in the country has been influenced by the standards established by ILO, provisions of the Indian Constitution and resolutions of committees, Commissions and conferences adopted from time to time.
Salient features of the laws dealing exclusively with child labour, relevant Conventions of ILO ratified by India, provisions of the Indian Constitution and a brief description of the existing labour laws relating to child labour are mentioned below.
The opening vignette of the chapter has highlighted the various factors and forces that led to the realization on the part of the government to enact a comprehensive law prohibiting the employment of children in hazardous occupations and processes and regulating their conditions of employment where it was not possible to prohibit their employment. Of these factors, a particular mention may be made of the constitutional mandates, Recommendations of the committees and Commissions, adoption of national policy for children and relevant Conventions and Recommendations of the ILO. Apart from these, deliberations at the international forums, particularly the United Nations and the ILO profoundly influenced the government’s thinking on the subject. It was under this background that the Child Labour (Prohibition and Regulation) Act, 1986, came to be adopted on 23 December 1986.
CHILDREN (PLEDGING OF LABOUR) ACT, 1933
Prior to the enactment of the Act, parents or guardians used to secure loans or advances on pledging the labour of their children. The Royal Commission on Labour found evidence of such practices in many industrial centres and recommended penalizing the giving of advance for the purpose and declaring the bond of pledging void. The Children (Pledging of Labour) Act, 1933, is designed to stop the malpractice of pledging, the labour of young children by their parents to the employer in lieu of a loan or advance. The Act declares any agreement to pledge the labour of child below 15 years of age by his parent or guardian in return for any payment or benefit as void. However, any agreement not made in consideration of any benefit other than reasonable wages to be paid for the child’s services and terminable at not more than a week’s notice is not to be deemed to be an illegal agreement. The Act prescribes penalties for both the employer and the parent for making such an agreement of pledging. In practice, the Act has proved to be a dead letter.
EMPLOYMENT OF CHILDREN ACT, 1938
The Royal Commission on Labour drew attention to serious abuses in connection with the employment of children in workshops which were outside the purview of the factory legislation. The Employment of Children Act, 1938, was intended to check such abuses in workshops. The Act raised the minimum age of employment of children to 15 years in occupation connected with the transport of passengers, goods or mails by railway and in occupations involving the handling of goods within the limits of ports. The Act was amended in 1939 which prohibited the employment of children below 12 years of age in certain occupations specified in the Schedule of the Act which included: bidi-making; cement manufacture; cloth-printing; dyeing and weaving; manufacture of matches, explosives and fire-works; mica-cutting and splitting; shellac manufacture; soap manufacture; tanning and wool-cleaning. The Act was again amended in 1951 prohibiting employment of young persons between 15 and 17 years of age during night in railways and ports. The Employment of Children Act, 1938, was repealed and replaced by the Child Labour (Prohibition and Regulation) Act enacted in 1986.
The Government of India has ratified a few conventions relating to child labour: These include: (i) Night Work of Young Persons (Industry) Convention (No. 6), 1919; (ii) Minimum Age (Trimmers and Stockers) Convention (No. 15), 1921; (iii) Medical Examination of Young Persons (Sea) Convention (No. 16), 1921; (iv) Night Work of Young Persons (Industry) Convention (Revised) (No. 90), 1948; (v) Minimum Age (Industry) Convention (No. 5), 1919; and (vi) Minimum Age (Underground Work) Convention (No. 123), 1965.
Other conventions of ILO relating to child labour have been: Minimum Age Convention (No. 138), 1973; Medical Examination of Young Persons (Industry) Convention (No. 77), 1946; Medical Examination of Young Persons (Non-Industrial Occupation) Convention (No. 78), 1946; Medical Examination of Young Persons (Underground Work) Convention (No. 124), 1965; and Worst Forms of Child Labour Convention (No. 182), 1999.
Relevant recommendations include: Medical Examination of Young Persons Recommendation (No. 79), 1946; Unemployment (Young Persons) Recommendation (No. 45), 1935; Apprenticeship Recommendation (No. 61), 1939, and Worst Forms of Child Labour Recommendation (No. 190), 1999. Child labour legislation in the country has been influenced not only by Conventions ratified by India, but also by those not ratified and relevant Recommendations (for details see Chapter 32).
PROVISIONS OF CONSTITUTION
Article 24 of the Constitution relating to the fundamental right against exploitation states that no child below the age of 14 years shall be employed in work in any factory or mine or engaged in any other hazardous employment. Article 39 under the section on Directive Principles of State Policy enjoins upon the state to direct its polity towards securing: (i)that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; and (ii)that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. Article 45 under the Directive Principles directs the state to endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children until they complete the age of 14 years. Under Article 41, the state is required, within limits of its economic capacity and development, to make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement and in other cases of undeserved want. Article 47 directs the state to regard the raising of the level of nutrition and the standard of living of its people and improvement of public health as among its primary duties and, in particular, the state shall endeavour to bring about prohibition of the consumption, except for medicinal purposes, of intoxicating drinks and of drugs which are injurious to health.
OBSERVATIONS AND RECOMMENDATIONS OF COMMISSIONS AND COMMITTEES
Speaking about the prevalence of child labour in the country, the Royal Commission on Labour (1931) said: ‘… In many cities large number of young boys are employed for long hours and discipline is strict. Indeed, there is reason to believe that corporal punishment and other disciplinary measures of a reprehensible kind are sometimes resorted to in the case of smaller children. Workers as young as five years of age may be found in some of these places working without adequate meal intervals or weekly rest days, and 10 or 12 hours daily….’1 The Commission recommended legislation for fixing the minimum age of employment at a higher level than that obtaining in many industries. As stand earlier in the chapter, the Commission drew attention towards widespread abuses in connection with child labour in workshops to which the Factories Act did not apply. The Commission was also critical of the pledging of child labour and recommended the end of the practice and declaring any agreement between employer and the parent or guardian in this regard as void. The Recommendations of the Commission led to the enactment of Children (Pledging of Labour) Act, 1933, and Employment of Children Act, 1938, the main provisions of which, have already been mentioned above.
The Labour Investigation Committee found that the legislative measures relating to employment of children met with little success in ameliorating the condition of work of child labour. The Committee observed, ‘The important fact that has emerged from the investigations is that in various industries, mainly smaller industries, the prohibition of employment of children is disregarded quite openly, and owing to the inadequacy of the inspection staff it has become difficult to enforce the relevant provisions of the law’.2
The first National Commission on Labour observed the following: ‘Our evidence reveals that employment or children is almost non-existent in organized industries. It persists in varying degrees in the unorganized sector such as small plantations, restaurants and hotels, cottons ginning and weaving, carpet weaving, stone-breaking, brick-kiln, handicrafts, and road building. Employment of child workers below the prescribed age is also reported to be continuing in far-off places and in rural areas where enforcement of statutory provisions is more difficult.’3 After studying the problem in some detail, the Commission recommended the following: ‘The employment of children is indeed more of an economic problem than anything else. Nevertheless, we consider denial of opportunity to children for their proper physical development and education to be an issue of a serious nature, keeping in view the larger interests of the society. While the economic difficulties are real, a way has to be found to give the child the necessary education in his more receptive years. We feel that this can be ensured by fixing the employment hours of children so as to enable them to attend to schooling. Where the number of children is adequate, the employers, with the assistance of the State Governments, should make arrangements to combine work with education.’4
NATIONAL POLICY FOR CHILDREN, 1974
The specific measures envisaged under the National Policy for Children adopted in 1974 inter alia emphasized that no child below the age of 14 years would be permitted to be engaged on dangerous work or would be allowed to do heavy work. Children would also be protected against neglect, cruelty and exploitation. It has also been enjoined upon the state to take appropriate step to provide free and compulsory education to children under 14 and, within the limitations of the availability of national resources, would launch a time-bound programme to achieve the end.
COMMITTEE ON CHILD LABOUR (GURUPADSWAMY COMMITTEE)
The Gurupadswamy Committee appointed by the Government of India in its report submitted in 1979 recommended: (i) fixation of minimum age of entry to any establishment, (ii) strengthening of enforcement machinery; (iii) establishment of Child Labour Advisory Boards; and (iv) formulation of effective educational policy with emphasis on integration of educational requirements with local crafts. In pursuance of the Recommendations of the committee, the central Child Labour Advisory Board with the Labour Minister as the chairman was appointed in 1981. The main functions of the board include: (i) to review of the implementation of existing laws relating to child labour; (ii) to suggest legislative and welfare measures for working children; (iii) to review progress of welfare measures; and (iv) to recommend industries where child labour should be eliminated.5
CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986 (MAIN PROVISIONS)
The statement of objects and reasons of the Bill reads:
- There are a number of Acts which prohibit the employment of children below 14 years and 15 years in certain specified employments. However, there is no procedure laid down in any law for deciding in which employments, occupations or processes the employment of children should be banned. There is also no law to regulate the working conditions of children in most of the employments where they are not prohibited from working and are working under exploitative conditions.
- The Bill intends to:
- Ban the employment of children, that is those who have not completed their fourteenth year, in specified occupations and processes
- Lay down a procedure to decide modifications to the Schedule of banned occupations or processes
- Regulate the conditions of work of children in employments where they are not prohibited from working
- Lay down enhanced penalties for employment of children in violation of the provisions of this Act, and other Acts which forbid the employment of children
- To obtain uniformity in the definition of ‘child’ in the related laws.
- The Bill seeks to achieve the above objectives.
Some Important Definitions
Some important definitions under the Act are reproduced in Box 29.1.
SOME IMPORTANT DEFINITIONS UNDER THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986
Child: ‘Child’ means a person who has not completed his 14th year of age [Sec. 2(ii)].
Establishment: ‘Establishment’ includes a shop, commercial establishment, workshop, farm, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment [Sec. 2(iv)].
Workshop: ‘Workshop’ means any premises (including the precincts thereof) wherein any industrial process is carried on, but does not include any premises to which the provisions of the Factories Act, 1948, relating to prohibition of employment of young children [Sec. 67] apply [Sec. 2(x)].
Appropriate Government: ‘Appropriate Government’ means, in relation to an establishment under the control of the central government or a railway administration or a major port or a mine or oilfield, the central government, and in all other cases, the state government [Sec. 2(i)].
Family: In relation to an occupier, means the individual, the wife or husband, as the case may be, of such individual, and their children, brother or sister of such individual [Sec. 2(v)].
PROHIBITION OF EMPLOYMENT OF CHILDREN IN CERTAIN OCCUPATIONS AND PROCESSES
No child is to be employed or permitted to work in any of the occupations set forth in Part A of the Schedule of the Act or in any workshop in which any of the processes set forth in Part B of the Schedule of the Act is carried on. However, this provision does not apply to any workshop in which any such 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 [Sec. 3].
Occupations in Which Employment of Children Under 14 is Prohibited
Part A of the Schedule of the Act specifies the occupations in which employment of children less than 14 years of age is prohibited. These include occupations described in Box 29.2.
OCCUPATIONS IN WHICH EMPLOYMENT OF CHILDREN UNDER 14 IS PROHIBITED
Transport of passengers, goods or mails by railway
Cinder picking, clearing of an ash pit or building operation in railway premises
Work in a catering establishment at a railway station, involving the movement of a vendor or any other employee of the establishment from one platform to another or into or out of moving trains
Work rlating to the construction of a railway station or with any other work where such work is done in close proximity to or between the railway lines
A port authority within the limits of any port
Work relating to selling of crackers and fireworks in shops with temporary licences
Automobile workshop and garages
Handling of toxic or inflammable substances on explosives
Handloom and power loom industry
Mines (underground and underwater) and collieries
Plastic units and fibreglass workshops
Diving [Part A of the Schedule]
Part B of the Schedule of the Act specifies the processes in workshops in which the employment of children less than 14 years of age is prohibited. These processes are described in Box 29.3. The central government is empowered to add any occupation or process to the Schedule. However, at least three months’ prior notice of such an intention by notification in the official gazette is necessary. When any occupation or process is thus added to the schedule, the schedule is deemed to have been amended accordingly [Sec. 4].
PROCESSES IN WHICH EMPLOYMENT OF CHILDREN IS PROHIBITED
Carpet-weaving, including preparatory and incidental process
Cement manufacture, including bagging of cement
Cloth-printing, dyeing and weaving including preparatory and incidental processes
Manufacture of matches, explosives and fire-works
Mica-cutting and splitting
Building and construction industry including processing and polishing of granite stones
Manufacture of slate pencils (including packing)
Manufacture of products from agate
Manufacturing processes using toxic metals and substances, such as lead, mercury, manganese, chromium, cadmium, benzene, pesticides and asbestos
‘Hazardous process’ and ‘dangerous operation’ as notified in the rules under the Factories Act, 1948 (see Chapter 16)
‘Printing’ as defined in the Factories Act, 1948 (see Chapter 16)
Cashew and cashew nut descaling and processing
Soldering processes in electronics industries
Automobile repairs and maintenance including incidental processes, namely, welding, lathe work, dent beating and painting
Brick kilns and roof tiles units
Cotton ginning and processing and production of hosiery goods
Fabrication workshops (ferrous and non-ferrous)
Gem cutting and polishing
Handling of chromite and manganese ores
Jute textile manufacture and coir making
Lime kilns and manufacture of lime
Manufacturing processes having exposure to lead such as primary and secondary smelting, welding and cutting of lead-painted metal constructions, welding of galvanized or zinc silicate, polyvinyl chloride, mixing (by hand) of crystal glass mass, sanding or scrapping of lead paint, burning of lead in enamelling workshop, lead mining, plumbing, cable making, wire patenting, lead casting, type founding in printing shops, store-type setting, assembling of cars, shot making and lead glass blowing
Manufacture of cement pipes, cement products and other related work
Manufacture of glass, glassware including bangles, fluorescent tubes, bulbs and other similar glass products
Manufacture of dyes and dye stuff
Manufacturing or handling of pesticides and insecticides
Manufacturing or processing and handling of corrosive and toxic substances, metal cleaning and photo engraving and soldering processes in electronic industry
Manufacturing of burning coal and coal briquettes
Manufacturing of sports goods involving exposure to synthetic materials, chemicals and leather
Moulding and processing of fibreglass and plastic
Oil expelling and refinery
Potteries and ceramic industry
Polishing, moulding, cutting, welding and manufacture of brass goods in all forms
Process in agriculture where tractors, threshing and harvesting machines are used and chaff cutting
Skinning, dying and processes for manufacturing of leather and leather products
Stone breaking and stone crushing
Tobacco processing including manufacturing of tobacco, tobacco paste and handling of tobacco in any form
Type making, repairing, retreating and graphite beneficiation
Utensils making, polishing and metal buffing
Zari making-all processes
Graphite powdering and incidental processing
Grinding or glazing of metals
Diamond cutting and polishing
Extraction of slate from mines
Rag picking and scavenging
Processes involving exposure to excessive heat (e.g. working near furnace) and cold
Timber handling and loading
Processes involving exposure to free silica such as slate, pencil industry, stone grinding, slate stone, mining, stone quarries and agate industry [Sec. 3 and Schedule of the Act].
Child Labour Technical Advisory Committee
The central government is required to constitute the Child Labour Technical Advisory Committee to advise it for the purpose of addition of occupations and processes to the schedule of the Act. The committee is to consist of a chairman and not more than 10 other members appointed by the central government. The committee is empowered to regulate its own procedure. The committee may constitute one or more sub-committees for consideration of relevant matters. Persons other than the members of the Advisory Committee may also be appointed in the sub-committees. The terms of office of members, the manner of filling casual vacancies, allowances payable to the chairman and other members, etc., will be such as prescribed under the rules [Sec. 5].
REGULATION OF CONDITIONS OF WORK OF CHILDREN
The provisions relating to the regulation of conditions of work of children apply in those establishments in which the employment of children is not prohibited. These provisions relate to hours and period of work, weekly holidays, disputes relating to age, health and safety, maintenance of register and display of notices, and others.
No child is to be required or permitted to work in any establishment in excess of the number of hours prescribed under the rules. The period of the work on each day should be so fixed that no period exceeds 3 hours and that no child works for more than 3 hours before he has had an interval for rest for at least one hour. The period of work of a child should be so arranged that inclusive of his interval for rest, it does not spread over more than 6 hours including the time spent in waiting for work on any day. A child is also not to be permitted or required to work between 7 p.m. and 8 a.m. or to work overtime or to work in any establishment on any day on which he has already been working in another establishment [Sec. 7].
Every child is an establishment is to be allowed in each week a holiday of one whole day. Such a holiday is to be specified by the occupier in a notice permanently exhibited in a conspicuous place in the establishment and the holiday so specified should not be altered more than once in three months [Sec. 8].
Notice to Inspector
The occupier of the establishment in which a child was employed immediately before the commencement of the Act is required to send to the Inspector of the area a written notice containing the following particulars within 30 days of the commencement of the Act: (i) the name and situation of the establishment; (ii) the name of the person in actual management of the establishment; (iii) the address for communication; and (iv) the nature of the occupation or process carried on in the establishment. A similar notice is also required to be sent by the occupier employing children after the date of commencement of the Act.
The provisions relating to hours and period of work [Sec. 7], weekly holiday [Sec. 8] and notice to Inspector [Sec. 9] do not apply to any establishment in which the 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 [Sec. 9].
Disputes as to Age
If a dispute arises between an Inspector and an occupier regarding the age of a child, it will be referred by the Inspector for decision to the medical authority prescribed under the rules [Sec. 10].
Health and Safety
The central and state governments are empowered to make rules relating to health and safety of the children employed or permitted to work in any establishment. The rules may provide for all or any of the following matters: (i) cleanliness in place of work and its freedom from nuisance; (ii) disposal of wastes and effluents; (iii) ventilation and temperature; (iv) dust and fume; (v) artificial humidification; (vi) lighting; (vii) drinking water; (viii) latrines and urinals; (ix) spittoons; (x) fencing of machinery; (xi) work at or near machinery in motion; (xii) employment of children on dangerous machines; (xiii) instructions, training and supervision in relation to employment of children on dangerous machines; (xiv) device for cutting off power; (xv) self-acting machines; (xvi) casing of new machinery; (xvii) floor, stairs and means of access; (xviii) pits, sumps, openings in floors, and so on; (xix) excessive weights; (xx) protection of eyes; (xxi) explosive or inflammable dust, gas, and others; (xxii) precautions in case of fire; (xxiii) maintenance of buildings; and (xxiv) safety of buildings and machinery [Sec. 13].
Maintenance of Register
The occupier of every establishment employing children is required to maintain a register containing the following particulars in respect of children employed by him: (i) the name and date of birth of every child employed or permitted to work; (ii) hours and period of work of every such child and the intervals of rest to which he is entitled; (iii) the nature of his work; and (iv) other particulars as prescribed under the rules [Sec. 11].
Display of Notice
Railway administration, port authorities and occupiers of other establishments are required to display in conspicuous and accessible places notice in the local language and English containing the abstracts of the provisions of the Act relating to prohibition of employment of children in occupations and processes [Sec. 3] and penalties for offences [Sec. 12].
The central and state governments are empowered to appoint Inspectors for the purposes of securing compliance with the provisions of the Act. An Inspector appointed under the Act is a public servant within the meaning of the Indian Penal Code [Sec. 17].
Penalties and Procedure
Penalties and Procedure under the Act are described in Box 29.4
PENALTIES AND PROCEDURES UNDER THE CHILD LABOUR PROHIBITION AND REGULATION ACT, 1986
Employing any child or permitting any child to work in contravention of the provisions relating to prohibition of employment of children in dangerous occupations and processes [Sec. 3] is punishable with imprisonment from 3 months to one year or fine which will not be less than 10,000 but which may extend to 20,000 or with both [Sec. 14(1)].
Repeating the offence after first conviction is punishable with imprisonment for a term which will not be less than 6 months but which may extend to 2 years [Sec. 14(2)].
Failure to give notice to Inspector [Sec. 9] or failure to maintain register relating to children [Sec. 11], or failure to display notice containing abstract of prohibition of employment of children in dangerous occupations and processes [Sec. 3] and [Sec. 14] or failure to comply with, or contravening any other provision of the Act or the rules is punishable with simple imprisonment which may extend to 1 month or with fine which may extend to 10,000 or with both [Sec. 14(3)].
Violation of the provisions relating to prohibition of employment of children under the Factories Act, 1948 [Sec. 67], Mines Act, 1952 [Sec. 40], Merchant Shipping Act, 1958 [Sec. 109], and Motor Transport Workers Act, 1961 [Sec. 21], is punishable in accordance with the provisions of this Act and not under the provisions of those Acts. [Sec. 15].
Any person, police officer or Inspector may file a complaint of Commission of an offence under the Act in a court of competent jurisdiction. A certificate as to the age of a child granted by a prescribed medical authority is to be considered as conclusive evidence of the age of the child. No court inferior to that of a metropolitan magistrate or a magistrate of the first class is empowered to try any offence under the Act [Sec. 16].
Repeal and Amendment of Other Acts
With the enactment of this Act, the Employment of Children Act, 1938, stands repealed [Sec. 22].
The Child Labour (Prohibition and Regulation) Act, 1986, also amends the definition of ‘child’ under the Minimum Wages Act, 1948, Plantation Labour Act, 1951, Merchant Shipping Act, 1958, and Motor Transport Workers Act, 1961, by defining ‘child’ as a person who has not completed his fourteenth years of age [Sec. 23].
Power to Make Rules
The central and state governments are empowered to make rules for carrying into effect the provisions of the Act. The matters to be provided for in the rules may include: (i) term of office of chairman and other members of the Child Labour Technical Advisory Committee, their allowances and manner of filling casual vacancies; (ii) hours of work of children; (iii) grant of certificate of age in respect of young persons; and (iv) additional particulars to be contained in the register maintained by the occupier. The rules and notifications are to be laid before the Parliament or state legislature, as the case may be, which can modify, amend or annual them [Sec. 18–19].
According to census figures of 1981, out of a total population of 685 million, the number of working children was 13.6 million which constituted about 2 per cent of the total population. In 1991, the number of working children in the country was 11.28 million which constituted about 1.34 per cent of the total population of 836 million in that year. The total workforce in the country was 223.00 million in 1981 and 314 million in 1991, and the percentages of working children to total workforce was about 6 per cent in 1981 and 3.59 per cent in 1991. According to 55th round of National Sample Survey Organisation the estimated number of working children in the country stood at 10.4 million during 1999–2000.6 According 2001 census, there are about 12.6 million child labour in the age group 5–14 in the country, of which, 5.77 million are main workers and 6.88 million marginal workers. Majority of the boys are main workers, whereas majority of the girls are marginal workers. About 0.12 million children are working in hazardous occupations.
As the problem of child labour in the country has, of late, become a subject not only of national importance but also of international concern, it is desirable to make an assessment of the Act, keeping in mind certain international instruments and resolutions, developments in the field of public policies and programmes, suggestions of relevant Commissions and committees and implications of Supreme Court decisions. Some of the pertinent aspects of the Act in regard to the prohibition of child labour in dangerous occupations and processes and regulation of the conditions of work of children in establishments where their employment has not been prohibited are mentioned in brief below.
- Initially, the Act prohibited the employment of children below 14 in only 5 dangerous occupations and 11 dangerous processes. The occupations and processes were essentially the same as those covered under the Employment of Children Act, 1938 (see Opening Vignette). In exercise of the powers conferred under the Act, the central government added, from time to time, other dangerous occupations and processes in the Schedule of the Act prohibiting employment of children below 14 in them. With the historic Judgement of Supreme Court of 10 December 1996 (see Case Study at the end of the chapter), the process of identification of dangerous occupations and processes was accelerated and in 1999 alone, 6 dangerous occupations and 33 dangerous processes were added to the schedule. Presently, the Act covers 14 dangerous occupations and 64 dangerous processes.
A perusal of the list of dangerous occupations and processes will reveal that quite a number of occupations and processes, also dangerous, have remained outside the purview of the Schedule. Employment of child labour, whether on dangerous or non-hazardous jobs is a nauseating feature in any civilized democratic society. Besides, demarcation between hazardous and non-hazardous occupations or processes for the purpose of prohibiting child labour may not always be scientific and convincing. For example, carpet-weaving, mica-cutting, cashew nut processing, gem-cutting and policing, cloth-weaving, production of hosiery goods listed in the schedule of the Act, which are incidentally export-oriented employments and the products of which have been experiencing trade restrictions of developed countries on the plea of employment of child labour in them, are not obviously more dangerous than many other hazardous work in manufacturing, transport, forestry, fishing, and others excluded from the purview of the schedule. Moreover, the distinction between ‘occupations’ and ‘processes’ listed separately in the Schedule is not scientific and needs rationalisation.
- The Act permits the employment of children below 14 is employments not covered under the Schedule. This eventually means that children of any age below 14, say 5 or 9 years could be employed as labour in these employments. If it is not possible to raise the minimum age of employment to 14, a lower minimum of 12 or 13 years could be prescribed for the all other employments on a uniform basis. The Shops and Establishments Acts of many states have fixed 12 years as the minimum age of employment in shops and establishments. If this is done, the minimum age of employment in dangerous occupations or processes could be correspondingly raised to 15 or 16 or even 18 years as the Mines Act, 1952, has done. A gradual raising of the minimum age of employment has a particular significance in view of the Constitutional mandate of providing free and compulsory primary education to children under 14.
- The provisions of the Act relating to prohibition of employment of children under 14 in dangerous occupations and processes as listed in the schedule and regulation of conditions of work of children in establishments in which their employment is not prohibited, do not apply to workshops and establishments in which 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. In practice, it often becomes difficult to ascertain whether the process is carried on by child labour employed from outside, or by the members of the family of the occupier.
- The determination of the age of the child often involves difficulties. In absence of an authentic certificate in this regard, the question is to be decided by a medical authority prescribed under the Rules. In a number of cases, the determination of age by medical authorities is not very authentic and certificates otherwise produced are not always correct. ’The Labour Bureau’s study showed that in small industries and cottage industries such as match manufacture, cashewnut processing, bidi making, carpet weaving, employment of under-age children, either uncertified or having false age certificates, continued.7 Even in regard to employment of children in factories, an enquiry conducted by Labour Bureau in the early 1950s showed, ‘… it is well within the experience of Factory Inspectors as well as other officers engaged on field inquiries that no sooner they make their appearance on the scene than quite a large number of children run away from the factory premises. These are often children below the minimum age of employment’.8 A similar situation still persists in most of the establishments covered under the Act.
- The coverage of the Act is very large. Both the central and state governments are empowered to appoint Inspectors for enforcing the Act in establishments and workshops in their respective jurisdictions. However, in practice, the number of Inspectors appointed has never been adequate in comparison to the dimension of the task before them. The Inspectors have also to face other sorts of difficulties in the discharge of the duties assigned to them. Some of the constraints of the enforcing machinery have been: (i) inadequacy of the machinery in numerical terms; (ii) poor infrastructural back-up; (iii) assignment of multifarious functions; (iv) problems involved in filing and conduct of prosecution cases before courts and specified authorities; and (v) lack of seriousness by judicial magistrates in taking labour cases. The result has been widespread violations of the Act. During 1997–98 and 2007–08, overall about 3.15 million inspections were carried out, resulting in 82,176 prosecutions out of which 23,220 convictions were obtained.9
- The Act does not contain provisions relating to the rehabilitation or education of children withdrawn from work as a result of the operation of the Act. Such a provision for the rehabilitation of bonded labourers has been incorporated in the Bonded Labour System (Abolition) Act, 1976. This aspect of rehabilitation and education has been covered in the Judgement of Supreme Court of 10 December 1996 which has been mentioned subsequently in the section on case study in the chapter.
CERTAIN SUBSEQUENT DEVELOPMENTS
It will be relevant here to make a mention of certain subsequent developments which have implications for law and practice relating to child labour in the country. Of these, the following deserve special mention.
National Policy on Child Labour, 1987
The Government of India announced the National Policy on Child Labour in August 1987. The policy lays emphasis on: (i) provision for a legislative action plan; (ii) focussing of general development programmes for the benefit of working children as well; and (iii) formulation of project-based action plan in areas of high concentration of child labour.
Under the project-based action plan, National Child Labour Projects (NCLP) were started in a few selected areas in the country. Major activities undertaken under the projects include establishment of special schools for providing non-formal education, vocational training, supplementary nutrition, stipend, health care, and so forth for children withdrawn from employment. In 1994, the National Authority for the Elimination of Child Labour (NAECL) was constituted, the main functions of which, include (i) to lay down policies and programmes for elimination of child labour particularly in hazardous industries; (ii) to monitor the progress of implementation of programmes, projects and schemes for elimination of child labour; and (iii) to coordinate implementation of child labour related projects of the various sister Ministries of the Government of India to ensure convergence of services for the benefit of the families of child labour. During 2009–10, the number of districts covered under the NCLP was 271.10 A review of the implementation of various programmes for the elimination of child labour reveals that ‘even though considerable efforts have been made, in order to make a significant dent in this age old social evil, a multi-pronged strategy coupled with a massive mobilisation of resources, both physical and financial, is required’.11
UN Convention on the Rights of the Child, 1989
The United Nations General Assembly adopted the Convention of the Rights of the Child on 20 November 1989. The Government of India deposited its instrument of accession on 11 December 1992. The instrument inter alia declares, ‘… the Government of India undertakes to take measures to progressively implement the provisions of Article 32, particularly paragraph 2(a), in accordance with its national legislation and relevant informational instruments to which it is a State Party’. Article 32 reads as follows:
- States Parties recognize the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development.
- States Parties shall take legislative, administrative, social and educational measures to ensure the implementation of the present article. To this end, and having regard to the relevant provisions of other instruments, States Parties shall in particular:
- Provide for a minimum age or minimum ages for admission to employment
- Provide for appropriate regulation of the hours and conditions of employment
- Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present article.
The National Commission on Rural Labour (1991) recommended enactment of compulsory primary education Acts by state governments, creation of non-formal education centres, enhancement of outlays for elementary education, guaranteeing wage-employment of parents of working children, universal prohibition of child labour and media publicity against child labour.
The Supreme Court Judgement, 1996
In writ petition No. 465 of 1986 in M. C. Mehta v. State of Tamil Nadu and Others [(1996) 6 SCC 756; AIR 1997 SC 699], the Supreme Court delivered a historic judgement on 10 December 1996. The judgement has given certain directions regarding the manner in which the children working in the hazardous occupations are to be withdrawn from work and rehabilitated and also the manner in which the working conditions of children working in non-hazardous occupations are to be regulated and improved upon. These directions have been mentioned in the ‘Case Study’ at the end of the chapter. In a related judgement delivered on 7 May 1997, the Supreme Court in Civil Writ Petition Nos. 12/25/84 and 11643/85 in Bandhwa Mukti Morcha v. Union of India and Others also gave a number of directions on the identification, release and rehabilitation of child labour [(1997) 10 SCC 549; AIR 1997 SC 2218].
International Programme on the Elimination of Child Labour (IPEC)
The International Programme on the Elimination of Child Labour (IPEC) is global programme launched by ILO in December 1991. India was the first country to join it in 1992. The long-term objective of the programme is to contribute to the effective abolition of child labour. The immediate objective includes (i) enhancement of the capability of ILO constituents and non-government organizations to design, implement and evaluate programmes for child labour elimination; (ii) to identify interventions at community and national levels which could serve as models for replication; and (iii) creation of awareness and social mobilization for securing elimination of child labour.
The Memorandum of Understanding signed by the Government of India in 1992 expired in December 1996. Subsequently, the period was extended from time to time on the signing of fresh memorandum of understanding.
ILO’s Worst Forms of Child Labour Convention, 1999
In 1999, the International Labour Conference adopted the Worst Forms of Child Labour Convention (No. 182) and the Worst Forms of Child Labour Recommendation (No. 190).
The Convention requires the ratifying Member States to take immediate and effective measures to secure the prohibition and elimination of worst forms of child labour as a matter of urgency. For the purposes of the Convention, a child is a person under the age of 18 years. The worst forms of child labour comprise: (i) all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (ii) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (iii) the use, procuring or offering of a child for illicit activities, in particular, for the production and trafficking of drugs as defined in the relevant international treaties; and (iv) work, which by its nature of the circumstances in which it is carried out, is likely to harm the health, safety or morals of children. The types of work in category (v) are to be determined by national laws and regulations or by the competent authority after consultation with the organizations of employers and workers concerned, taking into consideration relevant international standards. The list of the types of work thus determined is to be periodically examined and, if necessary, revised in consultation with the organizations of employers and workers.
Member states are required, after consultation with the employers’ and workers’ organizations, to establish or designate appropriate mechanisms to monitor the implementation of the provisions giving effect to the Convention. They are also required to design and implement programmes of action to eliminate as priority the worst forms of child labour. They will take all necessary measures to ensure effective implementation and enforcement of the provisions giving effect to the Convention including the provision and application of penal or other sanctions. Taking into account the importance of education in eliminating child labour, ratifying member states will take effective and time-bound measures to: (i) prevent the engagement of children in the worst forms of child labour; (ii) provide the necessary and appropriate direct assistance for the removal of children from the worst forms of child labour and for their rehabilitation and social integration; (iii) ensure access to free basic education, and wherever possible and appropriate, vocational training, for all children removed from the worst forms of child labour; (iv) identify and reach out to children at special risk; and (v) take account of the special situation of girls.
Member states are further required to assist one another in giving effect to the provisions of the Convention through enhanced international cooperation and assistance including support for social and economic development, poverty eradication programmes and universal education.
The Worst Forms of Child Labour Recommendation (No. 190), 1999, spells out the details relating to programme of action, hazardous work and implementation concerning worst forms of child labour, and supplements the provisions of the Convention.
Poverty has been the basic reason compelling parents of children, despite their unwillingness, to get them employed. ‘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 under parental gaze’.12
Recognizing that poverty is the primary cause of such a social evil, the Ministry of Labour and Employment has been laying emphasis on educational rehabilitation of child labour ‘complemented by the economic rehabilitation of families of child labour through the convergence approach so that child labour and their families are covered under the benefits of the schemes of various Ministries/Departments of the Government India like Human Resource Development, Women and Child Development, Housing and Urban Poverty Alleviation, Rural Development as well as Panchayati Raj institutions’.13
Recommendations of the Second NCL (2002)
The second National Commission on Labour (2002) asserted. ‘The only way to prevent child labour is to recognize that the rightful place of children is in school, not in the workplace or in the house. So, the first step is to ensure compulsory primary education for all children. Historically and worldwide, wherever child labour has been abolished, this is how it has been done’.14 The Commission recognized the link between eliminating child labour and universalizing of elementary education, and asserted that ‘one cannot be achieved without achieving the other’.15 The Commission felt that ‘the close links between education and prevalence of the child labour demand a convergence of laws on education and child labour’.16 The Commission also proposed an indicative law on child labour which would replace the existing Child Labour (Prohibition and Regulation) Act, 1986.17 The object and reasons of the draft law ‘recognizes the need to prohibit employment of children in all employments and regulation of working conditions for children required to be provided where they can be employed. This Bill intends to ensure that no child would be deprived of a future by being deprived of education and having to spend its childhood working. It recognizes every child out of school as a child labour or a potential child labour. It seeks to tackle the problem of child labour by ensuring universal education. At the same time, it seeks to prohibit all employments except as provided under the Act. The Act defines every child out of school as covered by the Bill. It seeks to ensure that each of these children gets an education. It also seeks to ensure that children do not work in situations where they are exploited and deprived of a future’.18
- Child labour has been widely prevalent in India from the very beginning of industrialization in the country. Legislative measures have been adopted from time to time to regulate employment of children in factories and subsequently in mines and other sectors of employment, but only on a moderate scale. The ills of child labour received the attention of the Royal Commission on Labour (1931), the Recommendations of which led to the enactment of Children (Pledging of Labour) Act, 1933, and the Employment of Children Act, 1938, with enlarged coverage. Despite these legislative measures, the menace continued to exist in many sectors of employment.
- It was only after the dawn of Independence that the problem received serious attention of the government. The Fundamental Rights and Directive Principles of State Policy of the Indian Constitution contained significant provisions relating to prohibition and control of child labour and protection and promotion of educational and other interests of children. In pursuance of the constitutional mandate and Recommendations of various Commissions and committees relating to child labour, the Child Labour (Prohibition and Regulation) Act was enacted in 1986. The constitutional and legislative measures in regard to child labour have been supplemented by the directions of the Supreme Court and efforts of some international organizations, as well.
- The Child Labour (Prohibition and Regulation) Act, 1986, applies to all categories of establishments. It prohibits employment of children below 14 years of age in certain hazardous occupations (presently 14 in number) and a number of dangerous processes (presently 65 in number) which have been specified in the schedule of the Act. The central government is empowered to add any other hazardous occupation or dangerous process in the schedule. The Act also requires the central government to constitute Child Labour Technical Committee for the purpose of giving advice on the matter.
- In respect of employments in which child labour is not prohibited, the Act seeks to regulate their hours of work and working conditions. The specific areas of regulation comprise hours and periods of work, weekly holiday, rest interval, protection of health, and safety.
- The Act also contains provisions relating to maintenance of register of child labour, appointment of inspectors, penalties and cognizance of offences.
- The Act amends the definition of ‘child’ under the Minimum Wages Act, 1948, Plantation Labour Act, 1951, Merchant Shipping Act, 1958, and Motor Transport Workers Act, 1961, by defining ‘child’ as a person who has not completed his 14 year of age. The Act also provides that violation of the provisions relating to prohibition of employment of children under the Factories Act, 1948, Mines Act, 1952, Merchant Shipping Act, 1958, and Motor Transport Workers Act, 1961, is punishable in accordance with the provisions of this Act and not under the provisions of those Acts. The Act repeals the Employment of Children Act, 1938.
- The directions given under the judgement of the Supreme Court in M. C. Mehta v. State of Tamil Nadu (10 December 1996) have had a potent bearing on the government’s policy and programme relating to elimination of child labour.
- In spite of the legal and other measures, the magnitude of the problem has continued to be overwhelming. The solution of the problem calls for coordinated efforts in such areas as eradication of poverty specially in rural areas, generation of employment, expansion of elementary education, generating awareness among masses, enforcement of child labour laws with more vigour, and above all rapid economic and social development of the country.
QUESTIONS FOR REVIEW
- Explain the dimension of the problem of child labour in the country and describe the legislative measures adopted in the country prior to the enactment of Child Labour (Prohibition and Regulation) Act, 1986.
- Describe the provisions of the Indian Constitution relating to child labour. How far have the Constitutional mandates been achieved?
- Discuss the provisions of the Child Labour (Prohibition and Regulation) Act, 1986, relating to prohibition of child labour. What is the penalty for contravening these provisions?
- Explain the provisions of the Child Labour (Prohibition and Regulation) Act, 1986, in regard to regulation of conditions of employment in establishments in which employment of child labour is not prohibited.
- Summarize the provisions of the Child Labour (Prohibition and Regulation) Act, 1986. What amendments will you suggest in the existing legislation?
- Is it possible today to impose a blanket ban on child labour in the country? What are the Recommendations of the second NCL in this regard?
- Explain the significance of the Supreme Court Judgement of 10 December 1996 in M. C. Mehta v. State of Tamil Nadu case?
Pledging of child labour
Worst forms of child labour
What are the measures to be adopted for an effective check on child labour in the country?
Moved by the pitiable conditions of child labour employed in Sivakashi fireworks, M. C. Mehta, a public-spirited lawyer thought it necessary to invoke the power of the Supreme Court under Article 32 (Right to Constitutional Remedies) as the fundamental right of the Constitution under Article 24 was being grossly violated. Article 24 states that ‘no child below the age of 14 years shall be employed in any work in any factory or mine or engaged in any hazardous employment’. While dealing with the case, the Supreme Court referred to in some detail, the Constitutional safeguards available to children under the Directive Principles of the State Policy and Fundamental Rights, provisions of labour laws concerning child labour, ILO’s Conventions on child labour, observations of committees appointed from time to time, conclusions of studies made in the area, national policy on child labour, UN Convention on the Rights of the Child and some related decisions of the Supreme Court itself. As regards the provisions of Directive Principles relating to children, the court held the view that judiciary, being one of three principal organs of the state, has to keep the same in mind when called upon to decide matters of great public importance. Abolition of child labour is definitely a matter of great public concern and significance.
The Supreme Court, after considering all the relevant materials available observed the following:
… child labour by now is an all-India evil, though its acuteness differs from area to area. So, without a concerted effort, both of the central government and various state governments, this ignominy would not get wiped out. We have, therefore, thought it fit to travel beyond the confines of Sivakashi to which place this petition is initially related.
In our view, it would be more appropriate to deal with the issue in wider spectrum and broader perspective taking it a national problem and not appertaining to any one region of the country. So, we would address ourselves as to how we can, and are required to, tackle the problem of child labour, solution of which is necessary to build a better India.
The specific directions given in the judgement of the Apex Court include (i) completion of the survey of children working in hazardous employments within a period of 6 months, (ii) payment of compensation amounting to 20,000 by the offending employer for every child employed in contravention of the provisions of the Act, (iii) giving alternative employment to an adult member of the family in place of the child withdrawn from hazardous occupation or payment of an amount 5,000 for each child employed in hazardous employment by the appropriate government, (iv) payment of interest on the corpus of 25,000 to the family of the child withdrawn from work; (v) provision of education for such child in a suitable institution, (vi) constitution of the Child Labour Rehabilitation-cum-Welfare Fund, and (vii) constitution of a separate cell in Labour Department of the appropriate government for the purpose of monitoring [M. C. Mehta v. State of Tamil Nadu & Others (1996) RD–SC 1576 (10 December 1996)].
What, according to you, should be the appropriate agency for identifying hazardous employments with reference to child labour?
What are the Directive Principles of State Policy under the Indian Constitution relating to children?
Do you think that the payment of 25,000 to the family of child labour withdrawn from work is adequate for his rehabilitation?
Is it possible today to impose a blanket ban on child labour in the country?
Will you favour imposing a penalty on the parents allowing their children to work in hazardous occupations?