In India, 33 million children are child labourers as per UNICEF report. Poverty, unemployment, ineffective implantation of the Right of Children to Free and Compulsory Education (RTE) Act, 2009, a growth of informal economy coupled with the lack of an adequate social security net tends to upsurge of child labour. In 1986, The Child Labour (Prohibition and Regulation) Act, 1986 was constituted in order to protect tender age of children from forced labour and exploitation. In 2012, The Child Labour Amendment Bill, 2012 was introduced in the Rajya Sabha. On July 26, 2016, parliament passed the modified version of the bill that is Child Labour Amendment Bill, 2016. On August 1, 2016, the bill got the nod from the President. The pertinent question that arises here is that whether “The Child Labour (Prohibition and Regulation) Amendment Act, 2016” will be an effective instrument in curbing the menace of child labour?. A befitting reply to the question can only be given if we are well acquainted with the core concept of child labour.
Child Labour: What it is?
Child labour is the practice of employing children in any economic activity, either on part or full-time basis. Such practices not only swallow childhood of the children, but also hamper their physical and mental development.
Constitutional Safeguards for Children
Constitution of India encompasses several provisions for upliftment, development and protection of children. The relevant articles are as follows:
- Article 15(3) gives the power to the State to enact laws to protect children.
- Article 21A provides free and compulsory education to all children between the ages of 6 and 14.
- Article 24 prohibits employment of children under the age of 14 years in hazardous industries.
- Article 39 (e) provides that the State shall direct its policy to ensure that the tender age of children is not abused.
- Article 45 provides that State shall endeavour to provide early childhood care and education to children below the age of six years.
- Article 47 provides that it’s the duty of the State to raise the level of nutrition and standard of living and to improve public health.
International Conventions and Regulations protecting child labour
The International Labour Organization (ILO), a specific agency of United Nations deals with labour issues. UN Convention on the Rights of Child, 1989 is the most significant international instrument that deals with the rights of children in general. There is eight core ILO Conventions with respect to labour, and out of these India has ratified only four.
Data on Child Labour
- According to UNICEF, there are 33 million child labourers in India.
- According to Global Slavery Index, India has the 4th largest estimated prevalence of modern slavery (including child labour) in proportion to its population.
- The census data of 2011 states that there are 35.3 million child labourers (ages 5 to 19 years).
- As per the International Labour Organisation (ILO) 2015 report, there are 5.7 million child workers (ages 5 to 17) in India, out of 168 million globally.
Why amend the law?
The following are the reasons behind the said amendment –
- The earlier Act failed to keep child labour in check.
- To make it compatible with RTE Act, 2009 and Article 21A of the Indian Constitution, 1950.
- To recognize adolescent labour as per ILO norms.
Salient features of the Amended Act
- Prohibition of employment below the age of 14 years– In the view of the Right of Children to Free and Compulsory Education Act, 2009, the Act put the blanket ban on employment of children below 14 years but allow them to work in home, family enterprises, outside of school hours and during holidays, and in audio –visual entertainment industry and sports only if it does not affect their education.
- A new category of ‘adolescents’ formed– The Act adds a new category of ‘adolescents’ (the 14-18 age group). They can be employed in ‘non-hazardous’ occupations.
- Stringent punishment – The Act has enhanced the punishment by way of this amendment. For the first time offender, the fine has been increased from 20,000 to 50,000 and imprisonment has been extended from 6 months to 2 years. The offence is cognizable and a punishment of 1-3 year will be awarded to repeat offenders. The Act incorporates relaxed penal provisions for a parent. In a case of a repeat offender, a parent has to pay a fine of 10,000 rupees.
- Powers conferred on the Central Government– The Act empowers the Central Government-
(i) To alter the list of hazardous occupation.
(ii) To empower District Magistrate in order to ensure effective implementation of law.
(iii) To conduct periodic inspection of places where children and adolescent cannot be employed.
- Child and Adolescent Labour Rehabilitation Fund – The Act proposes to set up Child and Adolescent Labour Rehabilitation Fund for rehabilitation of children.
- Child rehabilitation – The Act puts the onus on the State Government to rehabilitate the child and to extend monetary assistance by giving Rs 15,000 and add the fine from the employer for child’s rehabilitation.
Critical Analysis of the Amended Act
On the face of it, the amended Act of 2016 seems to be progressive. However, on careful reading, various flaws in the new Act are exposed. The shortcomings of the Act are as follows:
- Slashed list of hazardous occupation encourages child labour- Reducing the list of hazardous occupation from 83 to just 3 (mining, explosives, and occupations) would only reduce child labourers in number, not in reality. The law is grossly unfair to adolescents as they can be employed in rest 80 hazardous occupations. Section 4 of the Act gives discretionary power to government authorities,not to parliament, to revise the list. Therefore, it will give rise to more child labour.
- Legalizing Child labour in “family enterprise” will results in forced labour – Section 3 Clause 5 of the Act permits a child to work in family or family enterprises and in an audio-visual entertainment industry. The said provision is detrimental as it does not define the hours of work. It simply provides that only after school hours and during vacation child can work. Such legal provision is likely to be misused in the Indian context and would pave the way for child labour as most children indeed work in a family-run trade. The term family enterprise is defined as any work, profession or business performed by the members of the family with the help of other persons. Such broader definition would definitely promote caste-based occupation. It will also empower contractors that will, in turn, result in bonded/forced labour. Such provision will have an adverse impact on education, innovative minds, learning outcomes as well as health and overall development of a child.
- The Act has completely overlooked the vital distinction between children and adults– Non – recognition of this distinction is arbitrary and a clear violation of a right to equality embodied under Article 14 of the C Further, the definition of child labour has been altered by the Act as it legitimize child labour in a family business and permits adolescent to work in the non- hazardous occupation.
- The Act contravene domestic legislations as well as international convention– The Act not only reverse the gains of previous laws, but also goes against the spirit of RTE Act of 2009 as it allows a child to work in a family enterprise. It also transgresses international convention such as the International Labour Organization’s (ILO), and UNICEF’s Convention on the Rights of the Child, to which India is a signatory. UNICEF has raised alarm over children employment in family enterprises and reduction in the list of hazardous occupation.
- The Act lacks the provisions relating to regulation, inspection and monitoring systems. Regulation is going to be a big challenge as the Act does not lay down the criteria to determine whether a particular enterprise is a family enterprise or not. The lack of such provisions leaves the life of children at the hands of the employer.
- Penalty provisions also suffer from certain loopholes – The Act prescribe penalty only for employment of children and not for bad working conditions. Penalizing parents are bad in law as it will only increase the burden of indigent parents.
The amended Act, display a lack of national commitment to abolishing all forms of child labour and do not resonate with the constitutional objective of elimination of child labour in India. In the context of the socio-economic realities of India and the preservation of the social fabric and learning of traditional occupations, the new Act tweaked the law in such a way that children are readily available for employment. It will push more children into labour and make them subjects of exploitation at the labour market.