LEGISLATIVE DIMENTIONS OF CHILD LABOUR IN INDIA: AN ANALYSIS
The Author of this blog is Ms. Suravi Ghosh, Advocate, Burdwan District Judges’ Court, West Bengal & Guest Faculty, University of Burdwan, West Bengal
Introduction
“It was a very sharp contrast of
watching that boy, unable to go to school, clean the shoes of other little
children who had the hopes aspirations that education brings….child slavery is
a crime against humanity. Humanity itself is at stake here”. Sri Kailash Satyarthi.
The existence of the issue of child labour is considered as one of the biggest challenges of our society. It is a curse and stigma upon the society, a malady that may destroy the economic backbone of a country. The problem is obviously multidimensional. The rights of the child are marginalized. Prima facie, it seems rational to send children to work to augment family income in economic stricken society but it is to be remembered that it is at the cost of their physical, mental as well as emotional development. The practice of child labour is an age-old phenomenon in India. Existence of child labour in different periods has marked the history with the stigma of children’s plight. . Lack of employment, indebtedness etc. are some of the main reasons for those unfortunate families to force their children to go to work even when they know it very well that the work or labour is not at all proportionate to their age, physical capacity as well as mental health. A gross human rights violation can be located against those children.
Meaning Of ‘Child Labour’
‘Child’
is defined as any person below the age of 14[1] and employment of any child in any hazardous
employment including domestic help is prohibited[2].
The term child labour is often defined as work that deprives
children of their childhood, their potential and their dignity and that is
harmful to their physical and mental development.
It refers to
work that:
-is mentally,
physically, socially or morally dangerous and harmful to children; and /or
-interferes with
a child’s ability to attend and participate in schools fully by obtaining them
to leave school prematurely or requiring them to attempt combine school
attendance with excessively long and heavy work[3].
India’s census office 2001 defines child labour as participation of child less than 17 years of age in any economically productive activity with or without compensation, wages or profit. Such participation could be physical or mental or both. This work includes part time help or unpaid work in the farm, family enterprise or in any other economic activity such as cultivation or milk production for sale or domestic consumption.
Legislative Approach After
Independence
- In
Factories Act 1948, the minimum age of admission to the employment also
raised to 14 years. 6 months of imprisonment and compensation of Rs. 500/-
can be given under section 22 of Minimum Wages Act 1948. Under the same
legislation the relevant terms as child, adolescent are also defined.
- Constitution of India: It
was after independence that, the founding fathers of the nation became
aware that employment of the children is one of the manifestations of the
pervading poverty in the country and realized the nation’s responsibility
towards that tender age group. That was why the framers of the Constitution
deemed it needful to make special provisions for the protection of working
children. They are embodied under Art. 15(3), 21, 21A, 23, 24, 39(e) and
39(f), Art 45, Art 46 and 51A(k). Apart from these provisions, in the
Preamble it also lays down the principle of ‘socio-economic justice’ by
which indirectly the forefathers of our Constitution extended the very
concept of empowerment to the most fragile section of society, the
children. India has a federal form of government, and labour being a subject
in the Concurrent list, both the Central and the State Govt. can legislate
on the isuue of child labour.
- The
Mines Act 1952- This Act
prohibits the employment of children below the age of 18 in a mine; Motor
Transport Workers Act 1961, Apprentice Act 1961, Cigar Workers (Conditions
and Employment) Act 1966, Child Labour (Regulation And Abolition) Act 1970.
Bonded child labour is a system of forced or partly forced labour under
which the child or child’s parents enter into an agreement oral or written
with a creditor. Legislation was enacted to prohibit this kind of bonded
labour by anyone including children.
- According
to the provisions of Bonded Labour System (Abolition) Act, 1976 under
section 16, punishment can be provided and which may extend up to the period
of 3 years. Under section 20 of this Act, same punishment can be given in
the cases of abetment. All are cognizable offences.
- Juvenile
Justice (Care and Protection of Children) Act, 2000 was enacted by repealing Juvenile Justice Act, 1986. By succeeding
amendments, it is now more efficient to protect the best interest of
children and deal them with child friendly approach. Amendment Act of 2015
has made child labour a crime with a prison term, for anyone to keep a
child in bondage for the purpose of employment.
- The
Right of Children to Free and Compulsory Education Act 2009 mandates free
and compulsory education to all children aged 6 to 14 years. This
legislation also mandates that 25 percent of seats in every private school
must be allocated for children from disadvantaged groups.
- The
Child and Adolescent Labour (Prohibition and Regulation) Act 1986 is
considered as one of the most important legislations regarding the issue
of child labour in India. A child is defined as any person below the age
of 14 years of age and this legislation prohibits employment of a child in
any employment including as a domestic help (except helping own family in
non-hazardous occupations). It is a cognizable criminal offence to employ
any children for any work. Children between age of 14 and 18 are defined
as adolescent and the law allows them to be employed except in the listed
hazardous occupation and processes that include mining, inflammable
substance and explosives related work etc.
Conclusion
All
the initiatives taken by our Govt. are amply discussed. Nevertheless, every
coin has its two sides. Despite all the laws, policies or even the
international initiatives the real situation is something different. One of the
main pitfalls lies within the framework of Child Labour Amendment Act 2016. It
has reduced the long list of hazardous work into a short list consisting of
only three occupations[4].
Apart from this another loophole lies in an exempted clause related to family
occupation[5]is
incorporated. Such a deficiency in the statue will obviously vitiate the very
object of eradicating child labour completely. It would not be inappropriate if
one says that along with the issues of migration, large family structure,
non-existence provisions of compulsory education, illiteracy and ignorance of
parents, there are various economic reasons namely, poverty, unemployment,
absence of schemes for family allowance, children being cheaply available. If
by the application of legal machinery all there issues which are associated
with economy cannot be resolved, the menace of child labour cannot be
eradicated in spite of having legislations, policies, committees etc. Lastly if
the economic condition of nation is stable and every person has employment then
no guardian will be compelled to push their little fellows to work. Because
child is meant to learn not to earn. Change of a mindset can change everything.
It will be appropriate to conclude this Article with this famous quote by
Nelson Mandela-
[1] The Child Labour (Prohibition and Regulation)
Act, 1986( Act 61 of 1986), s.2(ii)
[2] The Child Labour (Prohibition and Regulation)
Amendment Act, 2016. (Act 35 of 2016), The Schedule, s. 3A
[3] Child Labour A Textbook for university
students, 2004. International Labour Organization, ISBN web pdf version:
92-2-115549-8:16
[4] The Child Labour (Prohibition and Regulation)
Amendment Act, 2016. (Act 35 of 2016), The Schedule, s. 3A
[5] The Child Labour ( Prohibition and
Regulation) Amendment Act, 2016. (Act 35 of 2016), s.3(2)(a)
Thank you very much
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