This project will briefly trace the legislative history, certain landmark cases, and a review of the popular child labour literature, in order to give an overview of the dire situation in India. It will delve into a deeper analysis of the social responsibility perspective, in the context of the Indian reality. It will conclude by recommending practical, implementable solutions that take into account the lessons from each of these literature and views.
Legislative Overview
India is home to “33 million child labourers in the age group 0–18 years, according to Census 2011.” It is unfortunate that an average of 1 in 11 children is found working in India, when they deserve a childhood that is absolved of pressures of labour and the responsibilities of fulfilling economic roles as adults.[1]
The child labour restrictive legislations date back to the colonial period in India.[2] The major thrusts of these laws, confined to factories and mines only, merely regulated the conditions and hours of work of children. Moreover, there lacked effective verification processes and strict enforcement rules.[3]
After its independence from the British, India had passed a number of constitutional protections and laws on child labour. Some notable ones are – Article 21A, 24, 25 of the Constitution of India, the Factories Act, 1948, the Mines Act, 1952, the Plantation Labour Act, 1951, the Motor Transport Act, 1961, the Apprentice Act, 1961, the Beedi and Cigar Workers (Condition of Employment) Act, 1966, the Shops and Commercial Establishments Act (State Acts), the Contract Labour (Regulation and Abolition) Act, 1970, the Bonded Labour System (Abolition) Act, 1976, the Atomic Energy Act, 1972, and the Employment of Children Act, 1978.
In order to bring uniformity in procedure, and regulate child labour, the Child Labour (Prohibition and Regulation) Act, 1986 (‘the Act’) was enacted. It defined a ‘child’ as any person below the age of 14, and prohibited employment of a child in any employment, including as a domestic help. The schedule to this Act lists out the hazardous occupations. It is a cognizable criminal offence to employ a child for any work.[4]
However, there are glaring loopholes in the Act.
Firstly, it prohibits only certain occupations which are regarded as hazardous, and merely regulates the working conditions of the others. It has no jurisdiction over children working for their own families, and those employed in the agricultural sector.[5]
Secondly, the Act rests on the premise that children engage in hazardous and non-hazardous occupations owing to their poverty; it is assumed that their families cannot survive without the extra income from their wages. Hence, the view is that total eradication of child labour is impossible without the elimination of poverty. However, this ignores that the income of the children is too meagre to have any significant effect on the economic condition of their families.[6]
Thirdly, an increasing number of children in the labour market results in a steady decline in the adult wages.[7]
Fourthly, targeting children in any one particular sector will not quantitatively decrease the number of child labourers; neither will it shrink the child work force in the ‘hazardous’ sector.[8]
Despite the legislation having introduced a uniform standard to regulate child labour, it fails to address the root causes and issues underlying its existence in the first place.
The 2016 Amendment
The central legislature has amended the Act to Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.[9]
In such a bleak scenario, when the Act has undergone an intense revision, after nearly three decades, the expectation would be that the policymakers would take this opportunity to objectively analyse and arrive at a protective and strong legislation for ensuring a safe childhood for all children. However, the 2016 Act has left some serious concerns unaddressed.[10]
A complete prohibition has been imposed on employment of a ‘child’ for labour, in any establishment, irrespective of being hazardous or not. A child is permitted to work only to help family, in family enterprise or as child artist after school hours or during vacations.[11]
The amendment introduced the concept of adolescent (a person between the ages of 14-18 years) labour for the first time. While permitting employment of adolescent labour except in hazardous processes or occupation, the amendment reduces the number of hazardous occupations and processes from 83 to 3.[12] This may allow employers in industries such as cotton farms, chemical mixing units, brick kilns, and battery recycling units etc. (which are actually hazardous) to employ adolescent labour, as they may get it at a cheaper rate.[13]
The Act also provides for rehabilitation of children, adolescents who have been victims, by setting up the Child and Adolescent Labour Rehabilitation Fund in which all the amounts of penalty have to be deposited.[14] The parents or guardians of the affected child/children have separate liability from that of the employers.[15]
Further, the Act provides for increased penalty and imprisonment between 6 months to 2 years, with fines varying between Rs. 20, 000 to Rs. 50,000. Previously, the violations under the Act were punishable with a lesser imprisonment sentence, and lesser quantum of fines.[16]
The issue becomes a whole lot more complex when looked at through the gender lens. Due to limited mobility while growing up, and the patriarchal setting of the society, girls are more likely to be affected as their involvement in family-based works, especially household-based work (including outsourced works), is higher.[17] As per Census 2001 data, “there were 1,85,505 children below 14 years employed as domestic workers in India, majority of which were girls. Since domestic labour is no longer categorised as a hazardous occupation, the girls of all ages shall be vulnerable to be inducted in domestic labour though for those below 18 years it shall be in the guise of accompanying their mother.”[18]
This will also perpetuate trafficking of girls in the age group of 15–18 years for domestic labour,[19] as they are susceptible to these pressures far more easily as opposed to the males in their family.
Evidently, the new amendments seem progressive; however, by allowing children to be employed in family enterprises or businesses,[20] and reducing the number of hazardous occupations, it has certain disadvantages too.
Cases
In People’s Union for Democratic Rights v. Union of India,[21]a breach of Article 24 of the Constitution was observed owing to employment of children below the age of 14 in construction work. The SC emphasized on strict observance of fundamental rights by private individuals and strongly against any form of forced labour.[22]
In Bandhua Mukti Morcha v. Union of India,[23] the issue was relating to employment of children in the carpet manufacturing industry. The court instructed the District Magistrate to conduct raids, and subsequently got 144 forcibly kept children released.[24]
In Sheela Barse v. Union of India,[25] children exposed to chemical fumes and coal dust from furnaces in the glass industry, were released from their employment.[26]
In M.C. Mehta v. State of Tamil Nadu,[27] the SC issued directions to the government to eliminate child labour. The directives included the conducting of surveys for the identification of working children, ensuring the withdrawal of children working in hazardous industries and ensuring their education in appropriate institutions.[28] In cases where a child was withdrawn from work, it had to be ensured that at least one adult member of the child’s family receives employment.[29]
The Bachpan Bachao Andolan[30] filed a PIL on the serious abuse of children forcibly detained in circuses. It was requested that the Court issue a number of orders or directions against the state, including – framing appropriate guidelines for people engaged in circuses, conducting raids on circuses to liberate the children, examination of gross violations of their rights, appointing special forces on the borders for preventing cross-border trafficking of children, criminalising intra-state trafficking, bondage, forcible confinement, sexual harassment, and abuse of children, empowering the Child Welfare Committee under the Juvenile Justice (Care and Protection of Children) Act, 2000 to award compensation to child victims rescued from the circuses, and prohibiting the employment of children under 18 in circuses.[31]
Perspectives
Historically, during Industrial Revolution, child work was promoted at social or public and official levels for many reasons.[32] It was seen as vital to prevent idleness, with emphasis to build apprenticeship skills for future.[33] In addition, the economic return of child work was contributing to the economy of the household, and thus relieving widespread poverty. In America, British colonies, it was encouraged and even reinforced by law.[34] Child labour witnessed a high rise, and popular literature has documented this, especially works of Charles Dickens’.
Children became more profitable as they received lower wages and were able to run machines that do not necessarily need ‘able-bodied’ men.[35] It was preferred by families also, which is why no one opposed the hazardous working conditions.[36]
However, in the 19th, 20th century, child labour saw a decline because of change in role of children in the economy, economic production.[37] In the course of Western industrialization, children’s useful activities changed from manual work in the household economy into symbolic work at school where children learnt the required skills to be effective in more sophisticated national economies.[38] Basically, their work did not reduce; it was transformed into a more economically useful model.[39]
Now, we associate child labour with the image of children working in factories etc, but labour put in by children has evolved as the civilization progresses, as per different views.[40] But the definition is basically encapsulates a moral category of activities which should be abolished regardless.[41]
Over these years, a review of the ‘child labour’ literature and experience reveals four highly generalized lines of thinking or perspectives – labour market, human capital perspective, social responsibility, and child-centered.[42]
Positions encountered in current international and national articulation of ‘child labour’ tend to fit into one of these perspectives more easily than any of the others. The first two perspectives are of an economic orientation, while the latter two tend to emphasize social and cultural factors.[43]
As discussed earlier, the focus of this project will be on the social responsibility perspective.
The Social Responsibility Perspective
This perspective considers the work of children in the context of social, rather than economic development.[44] The concern here is about social inequality, various types of discrimination, unjust concentrations, cultural alienation, the use of economic and political power, social irresponsibility, dysfunctional family and community relationships, and the deterioration of values, moral fibre.[45] The crux is the exclusion of disadvantaged groups from full participation in the protection, benefits and opportunities of society, and the proposed remedy is greater social inclusion of those being excluded or marginalized.[46]
The primary reasons of such exclusion are poverty and caste.[47] Child labourers documented in India come from a highly impoverished family unit and belong to a low-caste or minority community such as Scheduled Castes, Scheduled Tribes, Other Backward Classes, and Muslims.[48] People from these communities severely lack opportunities for stable income, education, the access to health services, basic rights, security of tenancy or land ownership, and an inability to access formal credit markets.[49]
As highlighted previously, the Act permits children to work for their families and reduces the number of banned occupations for adolescents; this disadvantages the vulnerable groups such as tribals and lower-caste communities.[50] With child labour rates highest among tribal and lower caste communities at almost 7% and 4% respectively, the changes could have an adverse impact on these especially marginalised and impoverished communities.[51]
The Act might legalise the child labour used by home-based units for rolling beedis, making agarbattis and papad, and doing zari embroidery work.[52] Further, these revisions are in contradiction with the Juvenile Justice Act and the UN Convention on the Rights of the Child as it neglects to define the number of hours children can work.[53] The group is concerned that “this will result in poor-low caste children being pushed to work long hours and increase school drop-out.” [54]
It has also been ignored that children working within the family set-up might be involved in a range of activities with diverse demands on a child’s physical and mental health. These include: “(i) involvement in strenuous activities such as embroidery work, carpet weaving, bangle making, beedi rolling, etc; (ii) being forced to work at odd hours; (iii) being exposed to the threat of sexual, physical and emotional exploitation (for example, domestic child labour, work in agriculture farms); (iv) significant health hazards in certain occupations (for example, food processing, chemical industries, brick kilns); and (v) distress due to migration (for example: seasonal migration, migration for agriculture-related work in the sugar cane, cotton and soya bean industries).”[55]
Some forms of child labour become invisible and these children may end up with irregular school attendance, lower levels of learning, and could be forced to drop out of school. Secondary enrolment is still lagging behind for these working vulnerable children.
Enabling children to work in family undertakings will propagate the occupation-based caste system and will tie children to their customary family occupations. It doesn’t give them sufficient chances to learn new, employable knowledge as a major aspect of their training. Nearly 35% of the working children in India (5-14 years) have a place with the socially backward settings, consequently keeping up the present state of affairs in the “social texture”, which turns into a financial risk to these children. These changes make the extent of a situation that is not helpful for their maintenance in schools, accepting quality instruction during that time and are eventually in opposition to legitimate opportunities.
Further, the abuse of this arrangement by contractors to mask child workers as assistants to adult individuals in most contracted work cannot be discounted. Along these lines, contractors have the chance to pass on a higher quantum of work to children at impressively low wages, complementing abuse of children.
There is a whole other world to understand when we analyze the meaning of family and family endeavor under this revision. With the end goal of this law, “family” in connection to a child implies his mom, father, sibling, sister, father’s sister and sibling and mother’s sister and sibling; and “family endeavor” implies any work, calling, produce or business which is performed by the individuals from the family with the commitment of different people. These definitions really open up a scope of settings for work by the child.
Settings that any of these family individuals claim, where any of these family individuals are utilized or wherein any of these family individuals have subcontracted work. So this may for all intents and purposes incorporate all occupations with their perils.
Also, this definition will fill in as an obvious proviso for expanded extent of trafficking. By and by, as a rule of trafficking of children, the perpetuator is a nearby family part or a network part. Hence, under the appearance of this all-inclusive meaning of family and family undertaking, the exchange of trafficking would thrive.[63]
In this manner, government’s contention that “children help their folks … and keeping in mind that helping they learn essentials of occupations” totally nullifies the general purpose of shielding children from exploitative work. Without satisfactory administrative and institutional ability to guarantee child welfare, child laborers in casual ventures and family settings could be left unprotected and subject to misuse. Furthermore, this would be acknowledged just when children are given a favorable situation where they are solely in school and not working.[64]
Evidently, an understanding of this perspective is lacking in the formulation of this legislation.
Conclusion
The situation in India is such that the government is unable to provide enough work at a living wage, to the people who are in dire need of the same. The able-bodied work force is poorly educated, and thus deprived of opportunities. Families have created way too many children to feed, clothe, educate and keep in good health, with the expectation that the more members in number, the higher the income will be. What they fail to understand is that it just means a poor division of limited resources amongst a higher denominator of people. Foreign corporations have failed to collaborate sufficiently in improving the situation of million children in India.
Moreover, the reality is such that the line between a child working in order to support their family and help prevent them from falling into absolute poverty, and a child being exploited by being forced to work, is blurred. It is also important to note that most children are aware of the realities of their situation; they would often want to work to contribute to family earning. They even take pride in what they do, and this element of child participation should not be ignored. However, it is also important to note instances of their abuse.
Our perception of “labour” is very limited to work they do in exchange for money. The focus should also be on the emotional, mental labour that kids put in raising themselves and their younger siblings, and this is something which is often ignored; this is similar to the way we ignore a woman’s contribution in the domestic sphere.
Further, to what extent can one solve child labour issues alone? The link between child labour and parental poverty can be mutually reinforcing. Child leisure is a “luxury” in that only sufficiently rich households can afford to “buy” it.
Hence, dooming and blaming the children for gross mismanagement succeeds in doing one thing well — depriving the country’s future of an academically prepared, healthy, well fed, work force. This promises more economic crises in the future. Child labour merely creates a more massive poverty instead of helping families get if that poverty that creates hunger and despair.
Government should check on the working conditions for adolescent labour as well as the working conditions for children in family run businesses.[65] This would require more personnel deployment which currently is in shortage.[66] The government, in order to effective monitor the ground realities involve and empower the non-governmental organizations and individuals who are actively involved and are working for the said cause.
