“If we are to teach real peace in this world, and if we are to carry on a real war against war, we shall have to begin with the children.” –Mahatma Gandhi
Dr. Rohin Koul
Not all work in which a child is involved should be classified as a child labour. According to G. K. Lieten, the term “child labour” is defined as a work that denies children of their livelihood and is adverse to their physical and mental development. This menace is not confined to a particular state but has existed in one form or the other in almost all countries world over and has appalled conscience of the people. The Treaty of Versailles in Part XIII has recognised that the universal peace should be based on social justice which also includes protection of labour against injustice and deprivation. It has also mentioned common labour standards which includes the right of association, wages for a reasonable standard of living, an eight-hour working day, protection of the worker against sickness, disease and injury arising out of his employment, equal remuneration for both men and women, equal rights for the migrant workers and the abolition of child labour. Amongst other things, this international legal instrument reinitiated that the children were one of the paramount components of the social structure and required protection against social injustice and economic exploitation. If children are forced or burdened to work for their living then the social fabric will get disrupted which in turn will disable future advancement of the society.
In order to attain these objectives both international and municipal law has prohibited child labour. The International Covenant on Economic, Social, and Cultural Rights (1966) under Article 10(3) has provided that children should be protected from economic and social exploitation and their employment in any work harmful to their health or hampers their normal development should be made punishable under law. The United Nations Declaration of the Rights of Child (1959) has stated that welfare of children is confined not only to the national governments but obligation is on the international community as well. Article 32(2) of the United Nations Convention on the Rights of the Child (1989) has entrusted the states to take legislative, administrative, social and educational measures to protect the rights of children which are essential for their physical, mental, moral and social development. Moreover, the Convention on the Rights of the Child (1989) and the International Labour Organization Convention on the Worst Forms of Child Labour (1999) has defined child as an individual who is under the age of 18 years unless the law applicable to the child majority is attained at an earlier age.
In the light of the above objectives, the Constitution of India, 1950 has provided a mandate for safeguarding rights of the children and protecting them from economic exploitation through prohibition of child labour. Article 24 of the Constitution has provided that no child below the age of 14 should be employed to work in any factory or mine or can be engaged in any other hazardous employment. Article 39(e) puts obligation on the State to strive for securing that the strengths of the tender age of children are not forced by economic necessity to enter vocations unsuited to their age. Under Article 45, the state has obligation to provide free and compulsory education for all children until they complete the age of 14 years. The 86th Constitutional Amendment Act (2002) is a most significant development with respect to protection of rights of child as Article 21A was inserted in the Constitution which has laid down an obligation on the State to provide free and compulsory education to all children in the age of 6-14 years. Furthermore, the amendment also included Article 51A(k) which made it a fundamental duty on the parents to provide education to children of the above ages.
In India, the child labour was regarded as a distinct component of the workforce and was acknowledged in various statutes from time to time. As a result most of the labour legislations permitted children to work on divergent age specifics under the different legislations. The recommendations of the Gurupadaswamy Committee on Child Labour (1979) and the Sanat Mehta Committee (1986) stressed on the need to have uniformity in defining age of a child. Henceforth, the Child Labour (Prohibition and Regulation) Act, 1986 was enacted which sought to obtain homogeneity in the definition of child by prescribing a uniform age of fourteen years and prohibited employment of children in specified occupations and processes. This Act, was amended in 2016 and renamed as the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (“Child Labour Act”) wherein it prohibited the employment of children below the age of 14 years in all occupations with limited exceptions as a child artist and in family business.
In addition to the prohibition of employment of children, the Act has laid down procedure for making modifications to the hazardous occupation/processes provided in the Schedule and has also enhanced penalties for actions involving violations of the respective provisions. The penalty for employing a child is punishable with imprisonment between six months and two years and a fine of not less than twenty thousand rupees. The parents of a child can also be held liable, if it apparently appears that they are promoting child labour for commercial purposes. The Central Government is responsible to constitute the Technical Advisory Committee to advise or provide suggestions for the purpose of addition of occupations and processes to the Schedule. The Act, has proposed the constitution of the Child and Adolescent Labour Rehabilitation Fund for each or two or more districts to which amount of the fine collected from those employers who have violated the provisions of the Act within the jurisdiction of such district/districts is attributed. The amount deposited in the fund together with the interest agglomerated has to be utilized for the welfare and interest of the child in whose favour the amount has been credited. The Act has further provided for the appointment of the inspectors for ensuring compliance with the respective provisions. In case of dispute regarding the age of the adolescent, the authority is entrusted to the inspector to refer such dispute to the appropriate medical authority. The Child Labour (Prohibition and Regulation) Amendment Rules, 2017 has provided for a specified framework prohibiting child labour and for rescue and rehabilitation of the child. In addition to this, it has also classified issues involving employment of children at family enterprise or in the entertainment industry. Further, these rules have also provided for the obligations of the enforcement agencies for ensuring effective conformity with the provisions of the Child Labour Act.
The judiciary, being one of the principal organs of the state has played a proactive role in tackling the problem of child labour which is a matter of greater public concern and significance. The Supreme Court in M.C. Mehta v. State of Tamil Nadu examined the magnitude of the problem of the child labour and directed the Central Government and the State Governments to constitute a Child Rehabilitation Welfare Fund at the district level with the corpus generated thereof, to be utilized for the rescue and rehabilitation of the children engaged in child labour. In Public Union of Civil Liberties v. State of Tamil Nadu, the Supreme Court in view of the welfare of children working as domestic helps in urban and rural areas directed the panchayats and local bodies to identify these children and ensure that such children get proper education as they are devoid of the benefits of elementary schooling. In Bachpan Bacho Andolan v. Union of India, the Supreme Court directed the Central Government to take immediate measures regarding the rescue and rehabilitation of children working in circus against sexual exploitation and trafficking. The Supreme Court in Labourers Working on Salal Hydro Electric Project v. State of Jammu and Kashmir ordered that no child below the age of 14 years can be employed in the construction work as prohibited in Article 24 of the Constitution and the Central Government is responsible for its enforcement. It further observed that the child labour has remained intractable despite various legislative enactments due the fact that various socio-economic factors are associated with it such as poverty, lack of employment opportunities, low standard of living and irregular income.
The Child Labour Act has intrinsic grey areas and lacunae which needs immediate attention. Section 3(1) of the Act has prohibited employment of children in all vocations subject to the exceptions provided in Section 3(2) which has allowed employment of children in family occupations or in entertainment/advertisement industry provided that the education of the child does not suffer. Therefore, it is a very formidable task to resort to a monitoring procedure which is required for identifying ill treatment which can be melted to the child worker. The Act has further restricted the activities within the Schedule which now include mining, inflammable substances/explosives and hazardous process, this has permitted employment of the adolescent in other hazardous vocations which have been excluded from the list.
The Child labour cannot be eliminated by getting down to one determinant only. The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 together with the Right of Children to Free and Compulsory Education Act, 2009 has ensured elimination of this menace, moreover, social and economic dimensions of the child labour can now be constructively manoeuvred with the effective implementation and enforcement of the above statutes.
The writer is Assistant Professor, School of Law, Sharda University, Greater Noida, Uttar Pradesh
