Child Labour Prohibition Where Do We Stand Now

Child labour and exploitation has reached alarming proportions throughout the length and breadth of the country. Sivakasi, the less known town in down South which literally lights millions of homes with its match industry and lights up the whole country during the festival of lights ‘Diwali’ through its cracker industry, has been instrumental in blackening the precious future of thousands of children by extensively deploying them in the most hazardous and dreaded match and cracker industry. In the North, tender children are extensively employed in carpet weaving and hard labour of stone quarries. In Bagalpur children are widely engaged in several industries in the unorganised sector most of which are hazardous in nature. Elsewhere in the country in each town, in numerous small scale and tiny industries in the unorganised sector, lakhs of children are employed in dangerous activities like operating cutting machines, bottling and handling of dangerous chemical substances, construction activities, transportation of goods etc. The problem of child labour in India, as observed by the Supreme Court, has indeed spread its fang far and wide. Such children work in appalling conditions like unhygenic work environment, lack of basic necessities like drinking water, unreasonably long working hours coupled with harsh treatment by the employers and inadequate remuneration. The Committee headed by M. S. Gurupadaswamy which went into the various aspects relating to child labour, observed in its report submitted in 1981 that extreme poverty, lack of opportunity for gainful employment and intermittency of income and low standards of living are the main reasons for the wide prevalence of child labour and that though it is possible to identify child labour in the organised sector which forms a miniscule of the total child labour, the problem relates mainly to the unorganised sector where utmost attention needs to be paid. It was in such backdrop that the Supreme Court, the guardian of the rights of the people made the following candid observation in Bandhua Mukti Morcha v. Union of India, AIR 1997 SC 2218 : 1997 Lab IC 2107. “Child of today cannot develop to be a responsible and productive member of tomorrow’s society unless an environment which is conducive to his social and physical health is assured to him. Every nation, developed or developing, links its future with the status of the child. Childhood holds the potential and also sets the limit to the future development of the society. Children are the greatest gift to the humanity Mankind has best hold of itself. The parents themselves live for them. They embody the joy of life in them and in the innocence relieving the fatigue and drudgery in their struggle of daily life. Parents regain peace and happiness in the company of the children. The children signify eternal optimism in the human being and always provide the potential for human development. If the children are better equipped with a broader human output, the society will feel happy with them. Neglecting the children means loss to the society as a whole. If children are deprived of their childhood — socially, economically, physically and mentally — the nation gets deprived of the potential human resources for social progress, economic empowerment and peace and order, the social stability and good citizenry. The Founding Fathers of the Constitution therefore have bestowed the importance of the role of the child in its best for development. Dr. Bhim Rao Ambedkar was far ahead of his time in his wisdom projected these rights in the Directive Principles including the children as beneficiaries. Their deprivation has deleterious effect on the efficacy of the democracy and the rule of law”. Due to poverty, children and youth are subjected to many visible and invisible sufferings and disabilities, in particular, health, intellectual and social degradation and deprivation. Child should grow up in a family environment, in an atmosphere of happiness, love and understanding. The child should be fully prepared to live an individual life in society.   What are the Constitutional and legal safeguards are, what initiatives the government of India had taken over the years, what are the International initiatives in this regard, how the Indian judiciary has viewed this social evil and where do we stand now are briefly spelt out here with a view to spread the awareness about the need to bring about progress in the direction of withdrawing children from hazardous employments and rehabilitate them suitably so as to make them responsible citizens of tomorrow’s India.  Constitutional Mandate The framers of Constitution of India consciously incorporated relevant provisions in the Constitution to secure compulsory universal primary education as well as labour protection for children. Under Article 24 of the Constitution of India no child below the age of fourteen years shall be employed in work in any factory or mine or engaged in any other hazardous employment.  Article 39 among other things mandates that (i) the State shall, in particular, direct its policy towards securing 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 41 provides that the State shall, within the limits of its economic capacity and development, 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 45 inserted in the Constitution consequent to Supreme Court’s decision in Unni Krishnan, AIR 1993 SC 2178 makes a provision for free and compulsory education for children and provides that the State shall 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 fourteen years.  Further, Article 47 casts a duty on the State to raise the level of nutrition and the standard of living and to improve public health.  Universal Declaration Article 26 (1) of the Universal Declaration of Human Rights assures that every one has the right to education which shall be free at least at the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made available and higher education shall equally be accessible to all on the basis of merit. Education enables development of human personality and strengthens the respect for human rights and fundamental freedom. It promotes understanding, tolerance and friendship among people. It is therefore the duty of the State to provide facilities and opportunities to the children driven to child labour to develop their personality as responsible citizens.  The Convention of the Rights of the Child which was ratified by the Government of India in November, 1989 recognizes the rights of the child for full and harmonious development of his or her personality. Article 3 provides that in all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be the primary consideration. Article 27 (1) provides that the State parties recognize the right of every child to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development. Article 28 provides thus :  "State Parties recognize the right of the child to education, and with a view to education and with a view to achieving this right progressively and on the basis of equal opportunity they shall in particular:  Make primary education compulsory and available free to all;  Encourage the development of different forms of secondary education including general and vocational education make them available and accessible to every child and take appropriate measures such as the introduction of free education and offering financial assistance in case of need;  Make higher education accessible to all on the basis of capacity by every appropriate means;  Make educational and vocational information and guidance available and accessible to all children;  To take measures to encourage regular attendance at schools and the reduction of drop out rates.  State parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention.  State parties shall promote and encourage international co-operation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods in this regard. Particular account shall be taken of the needs of developing countries.  Article 31 (1) of the Convention recognizes the right of the child to rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts. This Article provides thus :  “State 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. State 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 international instruments. State 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 36 states that the State Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare.  No doubt, the Government while ratifying the Convention with a reservation of progressive implementation of the governance, reminded itself of the obligations undertaken there under but they do not absolve the State in its fundamental governance of the imperatives of Directive Principles of the Constitution, particularly Articles 45, 39 (e) and (f) 46 read with Preamble, Articles 21, 23 and 24 of the Constitution rendering socio economic justice to the child and their empowerment, full growth of their personality — socially, educationally and culturally-with a right to leisure and opportunity for development of the spirit of reform, inquiry, humanism and scientific temper to improve excellence individually and collectively.  Legal Safeguards The Child Labour (Prohibition and Regulation) Act, 1986 seeks to achieve the basic objective to ban employment of children below the age of fourteen years in factories, mines and hazardous employments and to regulate the working conditions of children in other employments. The Act prohibits employment of children in occupations and processes listed in Parts A and B of the Schedule to the Act. Under this Act children below the age of fourteen years of age cannot be engaged in any occupations like those connected with transport of passengers, goods, or mails by railways, cinder picking, clearing of an ash pit or building operation in the railway premises, working catering establishment at railway stations; work relating to the construction of railway station or where work is done in close proximity to railway lines; work within the limits of any port. Further such children cannot be employed in processes like beedi making, carpet weaving, cement manufacture including bagging of cement, cloth printing, dyeing and weaving, manufacture of matches, explosives and fire works, mica cutting, shellac manufacturing, soap manufacture, tanning, wool cleaning, building and construction industry etc. The working conditions of children have been regulated in all employments which are not prohibited under the Act. The Act also provides for the constitution of a Child Labour Technical Advisory Committee to advise the Central Government for the purpose of addition of occupations and processes to the Schedule of the Act. Apart from this Act, under the Children (Pledging and Labour) Act 1933, any agreement to pledge the labour of children is void and further under this Act and also the Factories Act, 1948, the Mines Act 1952, the Motor Transport Workers Act, 1961, the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, employment of children under fourteen years of age is prohibited. Similarly under the Merchant Shipping Act, 1951 no person who has not completed fifteen years of age could be engaged to work in any capacity in a ship. The Plantations Labour Act, 1951 and the Minimum Wages Act, 1948 also contain provisions which seek to protect the interest of children in employment. The Apprentices Act, 1961 also provides that a person shall not be qualified for being engaged as an apprentice unless he is not less than fourteen years of age. The shops and Establishments Act of different States also prohibit the employment of children below the age of fourteen years. The central focus in all these legislations is to restrict the minimum age of entry to employment and to regulate the working hours, spread over, night work etc. of working children.  Other Initiatives on Child Labour The International Programme on the Elimination of Child Labour is a global programme launched by the International Labour Organisation in 1991 and India was the first country to join it in 1992. The ultimate objective of this programme is abolition of child labour and the immediate objectives are :  enhancement of the capability of the constituents of International Labour Organisation to design, implement and evaluate programmes for child labour elimination; to identify interventions at community and national levels which could serve as models for replication; and creation of awareness and social mobilisation for securing elimination of child labour. Further International donor agencies like the GTZ have launched programmes such as Child Labour action support Programme and International Programme on elimination of child Labour intended for capacity building of governmental and non governmental agencies and human resource development of their functionaries through orientation and training, environment building, promoting catalytic agencies to support rehabilitation programmes for working children etc. The National Resource Centre on Child Labour set up in National Labour Institute has also taken up a number of research studies with a view to updating existing knowledge and exploring whereto unexplored issues relating to child labour. To assess the fallout of child labour legislation a major project on child labour in home based industries was undertaken in nine areas. The Centre also organised orientation programme on child labour for trade unions, NGOs and other such voluntary organisations.  The National Policy for children Resolution adopted in August 1974 further developed the Constitutional mandate and set out a policy framework and measures aimed at providing adequate services for children. These were to form a prominent part of the Nation’s plan for development of human resources. Free and compulsory education for all children up to the age of 14, provisions of health and nutritional programmes and services, providing alternative forms of education for children unable to take full advantage of formal school education for whatever reasons and measures protecting children against neglect, cruelty and exploitation form part of the National Policy for children. The Government of India announced the National Policy on child Labour in 1987 outlining the legislative action plan, focusing of general development programmes for benefiting children wherever possible and project based action plans in areas of high concentration of child labour engaged in wage/quasi wage employment. In 1994 a high powered body, the National Authority for elimination of child Labour was constituted under the chairmanship of the Union Labour Minister. A Central Monitoring Committee for the overall supervision, monitoring and evaluation of National Child Labour Projects has also been set up under the Chairmanship of the Labour Secretary to the Government of India. Presently National Child Labour Projects are being run in 96 Districts of the country and the children withdrawn from jobs are being rehabilitated. At the recently held National Conference on Child Labour (January 2001, New Delhi) the Union Labour Minister stated thus: “In the recent past, the government had increased the number of prohibited processes from 18 to 51. Now this number is being increased so that more and more processes could be brought under the prohibited category. It will help in making these National Child Labour Projects more comprehensive. The Technical Advisory Committee constituted under the child Labour Act is also assigned with the responsibility to help the government in its objective of withdrawing 20 lakh children from hazardous occupations and processes by the year 2005. Other such employments and processes should be identified where employment of children may be prohibited. There is a need to bring more and more occupations and processes under the Child Labour Act.”  Ninth Plan Strategy The Annual Report of the Labour Ministry for 1999-2000 states that non availability of accruate authentic and up to date data on child labour has been a major handicap in planned intervention for eradication of this social evil. This however does not minimise the urgency and importance of drawing up concrete programmes for identification, release and rehabilitation of working children. Poverty has been identified as a major factor compelling parents to send their children to work. Lack of awareness and educational opportunity and ineffective enforcement of child labour related laws contribute to the existence and acceptance of this social evil. The improvement in the living and working conditions of parents and improvement in the economic conditions are considered crucial to the elimination of child labour. The support of the Ministry of rural Development has been enlisted by the Labour Ministry. The ultimate objective of the child labour programme is to convert working children into productive and participative members of the society. For the fulfilment of this objective there cannot be a more effective and powerful weapon than education. The education imparted has to be appropriate to a group which is multi skilled, multi aged, multi level and with divergent socio-economic background. Apart from this, an appropriate climate has to be created by way of generating awareness among the public against this widespread social evil. Simultaneously the enforcement machinery has to be geared up to meet the challenge. Considering the magnitude of the problem and paucity of resources a sequential, gradual but integrated approach will be adopted. New techniques of monitoring and evaluation will be introduced which will act as tools of timely correction while establishing the credibility of the information system and helping to implement the programme in area specific, time bound, cost effective and result-oriented manner.  Indian Judiciary on Child Labour In several of its judgments the Supreme Court has expressed in most explicit terms its anxiety and concern over employment of young children in hazardous operations and has observed candidly that prevalence of the system of child labour is revolting to any civilised human conscience and yet the incidence of the system not only persists but is growing in its number and intensity.  In M.C. Mehta v. State of Tamil Nadu, 1997 Lab IC 563 : AIR 1997 SC 699 (Writ Petition No. 465 of 1986 decided on 10-12-1996) in a public interest litigation concerning the children employed in the match and fire work industry in Sivakasi the Supreme Court pointed out: “till an alternative income is assured to the family, the question of abolition of child labour would really remain a will-of-the wisp. Now, if employment of child below the age of 14 is a Constitutional induction in so far as work in any factory or mine or engagement in other hazardous work and if it has to be seen that all children are given education till the age of 14 years in view of this being a Fundamental Right now, and if the wish embodied in Article 39 (e) that the tender age of children is not abused and citizens are not forced by economic necessity to enter avocation unsuited to their age and if children are to be given opportunities and facilities to develop in a healthy manner and childhood is to be protected against exploitation as visualised by Article 39 (f), it seems to us that the least we ought to do is to see to the fulfilment of legislative intendment behind enactment of the Child Labour (Prohibition and Regulation) Act, 1986. Taking guidance there from, we are of the view that the offending employer must be asked to pay compensation for every child employed in contravention of the provisions of the Act a sum of Rs. 20,000 and the Inspectors whose appointment is visualised by Section 17 to secure compliance with the provisions of the Act should do this job. The inspectors appointed under Section 17 would see that for each child employed in violation of the provisions of the Act, the concerned employer pays Rs. 20,000 which sum could be deposited in a fund to be taken as Child Labour Rehabilitation cum Welfare fund. The liability of the employer would not cease even if he would desire to disengage the child presently employed. It would perhaps be appropriate to have such a fund District-wise or area wise. The fund so generated shall form corpus whose income shall be used only for the concerned child. The quantum could be the income earned on the corpus deposited qua the child. To generate greater income the fund can be deposited in high yielding scheme of any nationalised bank or other public body. .....Strictly speaking a strong case exists to invoke the aid of Article 41 of the Constitution regarding the right to work and to give meaning to what has been provided in Article 47 relating to raising the standard of living of the population and Article 39 (e) and (f) as to non abuse of tender age of children and giving opportunities and facilities to them to develop in healthy manner, for asking the State to see that an adult member of the family whose child is in employment in a factory or a mine or other hazardous work, gets a job any where in lieu of the child. This would also see the fulfilment of the wish contained in Article 41.” The Court went on to make further directions as under :  A survey should be made of child labour in factories, mines and hazardous employments within six months. To start with work could be taken regarding those employments which have been enumerated in Article 24 which may be required as core sector, to determine which hazardous aspect of the employment would be taken as the criterion. The most hazardous employment may rank first in priority to be followed by comparatively less hazardous and so on. The National Child Policy as announced by the government has already identified the following as industries requiring action in priority: Match industry in Sivakasi; diamond polishing in Jaipur; glass industry in Firozabad, brassware in Moradabad; hand made carpet weaving in Mirzapur; lock making in Aligarh; Slate industry in Markapur (AP) and Mandsaur (MP). The employment to be given as per the Court’s direction could be dovetailed to other assured employment. The employment so given could as well be the industry where the child is employed, a public undertaking and would be manual in nature in as much as the child in question must be engaged in doing manual work. The undertaking chosen for employment shall be one which is nearest to the place of residence of the family. In those cases where alternative employment could not be made available, the parent/guardian of the concerned child should be paid the income which would be earned on the corpus which would be a sum of Rs. 25,000 for each child. The employment given or payment made would cease to be operative if the child is not sent for education by the parent/guardian. On discontinuation of the employment of the child, his education would be assured in a suitable institution with a view to make him a better citizen. A District could be the unit of collection so that the executive head of the District could keep a watchful eye on the work of the Inspectors. Further in view of the magnitude of the task, a separate cell in the Labour Department of the appropriate Government should be created. Monitoring of the scheme would also be necessary and the Secretary of the department could perhaps do this work. Overall monitoring by the Ministry of Labour of the Government of India would be beneficial. In so far as the non hazardous jobs are concerned, the Inspector shall have to see that the working hours of the child are not more than four to six hours a day and it receives education at least for two hours each day. The entire cost of the education should be borne by the employer. In Maharashtra State Board of Secondary and Higher Education v. K. S. Gandhi, 1991 AIR SCW 879, right to education at the secondary stage was held to be a fundamental right. In J. P. Unnikrishnan v. State of A.P., 1993 AIR SCW 863 : AIR 1993 SC 2178; a Constitution Bench had held that education up to the age of 14 years to be a fundamental right. Right to health has been held to be a fundamental right; right to potable water has been held to be a fundamental right, meaningful right to life has been held to be a fundamental right. The child is equally entitled to all these fundamental rights. It would therefore be incumbent upon the State to provide facilities and opportunity as enjoined under Article 39 (e) and (f) and to prevent exploitation of their childhood due to indigence and vagary. Various welfare enactments made by the Parliament and the appropriate State Legislatures are only testing illusions and a promise of unreality unless they are effectively implemented and make the right to life to the child driven to labour a reality, meaningful and happy. Article 24 of the Constitution prohibits employment of the child below the age of 14 years in any factory or mine or in any other hazardous employment, but it is a hard reality that due to poverty child is driven to be employed in a factory, mine or hazardous employment. Realistic constructive steps and actions are required to be taken to enable the child belonging to poor, weaker sections dalit and tribes and minorities enjoy the childhood and develop its full blossomed personality. Child labour therefore must be eradicated through well planned poverty focused alleviation, development and imposition of trade actions in employment of the children etc. Total banishment of employment may drive the children and mass them up into destitution and other mischievous environment making them vagrant, hard criminals and social risks etc. Therefore while exploitation of the child must be progressively banned, other simultaneous alternatives to the child should be evolved including providing education, healthcare, nutrient food, shelter and other means of livelihood with self respect and dignity of person. Immediate ban of child labour would be both unrealistic and counter productive. Ban of employment of children must begin from the most hazardous and intolerable activities like slavery, bonded labour trafficking, prostitution, pronography and dangerous forms of labour and the like.  Conclusion Though the country became free from the clutches of imperialism more than five decades ago, it is unfortunate that we are still unable to liberate thousands and thousands of young ones from the iron hands of unscrupulous anti-social entrepreneurs who are fleecing and exploiting the children in the name of employment. The future of the country to a large extent lies in the hands of today’s young ones and unless they are well brought up, educated and groomed, the country cannot make progress and compete with the developed and developing nations. Though ample legislative measures exist, what is lacking is the will to administer the laws in their letter and spirit and their enforcement. Notwithstanding the constitutional safeguards and mandate. Universal and other child related declarations to which India is a signatory, the Central and State Governments have not been able to make much improvements in the direction of putting an end to such practices involving child labour and exploitation. Poverty of masses compelling parents of the children to force them to employment including employment in hazardous and dangerous avocations coupled with the devious methods adopted to middle men in the name of contractors in luring such children to employment for their own gain are the main factors leading to child employment. The government itself has recognized that the idea of increasing the income of parents by covering various development schemes at economic level is a pragmatic step. Though the government is reported to have commissioned National Child Labour Projects in 96 Districts, still there are more than 20 lakh children to be withdrawn from employment and rehabilitated by the government and this is targeted to be achieved by the year 2005.  In the recently held National Conference on child Labour; the Union Labour Minister himself had stated that as far as the effective enforcement of child labour laws is concerned it is necessary to make law enforcement officers, labour inspectors and factory inspectors more capable and efficient by imparting necessary training to them and attempt should be made to expand the field of such training and prepare a group of inspectors more and more enforcement officers, labour and factory inspectors could be covered under such training.  What is required is to create awareness in the minds of the people about the negative aspects of child labour and the imperative need to bring back these children into the mainstream of the social life. Then further efforts are required in the direction of rehabilitating such children by providing them proper education and other facilities so as to groom them as responsible citizens. Non government organisations can play a very effective role in this task. One or even few of organisations like the Bandhua Mukti Morcha would not be able to bring about the change. Every town and every village requires such activists to work relentlessly with missionary zeal so that at least in the next ten years it may be possible to achieve a reasonable degree of success in the task of abolition of child labour. As rightly observed by the Supreme Court abrupt and immediate abolition of the child labour will do more harm than good. It has to be done gradually. The Government should seek the help of the mighty corporate sector in India in its task of withdrawing children from labour and rehabilitating them properly as the corporates have both resources as well as facilities for rehabilitating such children through proper education and raising the standards of life.

Author Name: V. Gopalan