Human Rights aspects of Child Labour

The Universal Declaration of Human Rights adopted by U.N. General Assembly in 1948 was landmark in this unique legal development. The next historical step was the adoption of Declaration of Human Rights of Child by the U.N. in 1959. There has been remarkable progress also in the field of enforcement of Human Rights. Various agencies, organisations, conferences etc. all emphasised and stressed the need to fulfil basic needs of the children so as to help them to grow up into healthy and responsible citizens. Following are some of the important conferences on the matter :  SAARC Summit held on its first Sumit Meeting in November, 1986. Stockholm Conference on the “Rights of the Child” in June, 1989. The Convention of Rights of the Child adopted by U.N. General Assembly in 1989. The aim of individual Human Rights is to create single idea offered by human to humanity. Human Rights violation have created more deaths and more misery than all the weapons of mass destruction, with our incredible scientific progress, we have reached a stage, where the only threat to men left to be met is man himself. Today there is hope because the Human Rights movement has become global to curb brutality and oppression. One of the basic rights is the right to decent living embodied in Article-25 of Universal Declaration of Human Rights, 1948.  Constitutional Provisions The Constitution of India recognises the need for granting special protection to children. The provisions are twofold :  Fundamental Rights, as given below Article 24 provides categorically that no children below the age of 14 years, shall be employed to work in any factory or mine engaged in any other hazardous employment/occupations. As regards directive principles of State Policy, it will be appropriate to refer to Article 39 (contained in Part IV of the Constitution). It incorporates Directive Principles of State Policy in these terms :  That.......... tender age of children is not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength/capabilities. That children are given enough opportunities and facilities to develop in a healthy manner with conditions of freedom and dignity and that childhood and youth are protected against exploitation, moral and material abandonment. Article 45 lays down that the State shall endeavour to provide within the period of 10 years from the commencement of the Constitution, free and compulsory education for all children until they attain the age of 14 years.  The Act also prohibits the employment of child below 14 years of age in any workshop where in any of the process such as, bidi manufacturing, explosive, fire works, mica cutting and splitting, soap manufacturing, and wood cutting, clearing takes place. The Indian Factories Act prohibits employment of children below 14 years whereas directive principles direct the State to frame policy for welfare of the child.  (II) Directive Principles. As regards to Fundamental Rights, specific provisions in regard to children have been made in Part-III of the Constitution. While in general, the Constitution prohibits discrimination on certain grounds, viz., Article 15, clause (3) saves the validity of laws making special provisions for women and children. State action so taken cannot be challenged on the grounds of discrimination.  In Asiad workers1 it was found that children below the age of fourteen were employed in the construction work. On behalf of the Union of India, it was asserted, that since the children Act, 1938 was not applicable to construction work, there was no breach of the statute. Bhagwati, J. observed that it was unfortunate that the Children Act was not applicable to construction work, clearly a hazardous occupation, despite the fact that India was a party to Convention 29 of the ILO which prohibits child labour. The Judge added, however, there was clear breach of Article 24 of the Constitution which lays down that no child below the age of 14 shall be employed in any hazardous work/occupation.  Reiterating that children should not be employed in hazardous work, the Supreme Court in M.C. Mehta v. State of Tamil Nadu, AIR 1991 SC 417 : 1991 Lab IC 231, said that the spirit of the Constitution perhaps is that children should not be employed in factories as childhood is the formative period and in terms of Article 45 they are meant to be subjected to free and compulsory education until they complete the age of 14 years. The provision of Article 45 in the Directive Principles of State Policy, distant dream has still remained a far cry and though according to this provision all children upto the age of 14 years are supposed to be in school, economic necessities forces bind them to seek employment.  Match manufacturing process is also hazardous occupation and the National Human Right Commission has suggested that no child should be employed in such hazardous occupation.  Legislative Enactments India passed a comprehensive legislation on child labour. The Child Labour (Prohibition and Regulation) Act, 1986.  The expression ‘Child’ has been defined to mean a person who has not completed the age of fourteen years. This seems to be now the uniform meaning of the term ‘Child’ under other labour statutes.  Factories Act Section 67 says, those who are 14 years are totally prohibited from entering into employment in Factories. In Walker T. Ltd. v. Martindale, (1961) 85 JLKB 1543 - it was held that a child employed as a sweeper to clean the floor of a factory is in contravention of the provisions of the section. Those persons who are between 14 and 15 years can be employed under conditions provided under Sections 68, 69 and 71 to 75 of the Act. Persons under 17 are not allowed to work at night under Section 70. The Act also prohibits the work to be done for adolescents which are more risky. Mines Act 1952 : this Act not only prohibits the employment of children in mines, but also prohibits the presence of children in any part of a mine which is underground or in any open cast working in which any mining operation is being carried on. An adolescent is not allowed to work in part of a mine which is underground, unless he has completed his 16th year and has a medical certificate of fitness for work. The Act also says that adolescent is allowed to be employed in any mine during daylight hours.  The Plantation Labour Act, 1951 prohibits the employment of children below 12 years. The adolescents between 15-18 years cannot be employed for work, unless he is certified fit for work by a Surgeon.  The Merchant Shipping Act, 1958 applies to ships registered in India. The Act prohibits the employment of children under 15 subject to certain exceptions and employment of young persons under 15 as trimmers and stokers except under certain specific conditions.  The Motor Transport Workers Act, 1961 prohibits the employment of children under 15 in any capacity in the motor transport undertaking. The adolescents are prohibited to work unless a certificate of fitness is granted which is valid for 12 months. An adolescent can work only for 6 hours including a rest interval of half an hour and between 10.00 A.M. and 6.00A.M. only.  The Children (Pledging of Labour) Act, 1933 declares an agreement, oral or written, to pledge the labour of children, whereby the parents or the guardian of the child in return of any payment of benefit to be received, undertakes to cause or allow the services of a child to be utilised in any employment to be void.  The Employment of Children Act prohibits the employment of children under 15 in any occupation connected with the transport of passengers, goods or mails by railways or connected with (he port authority within the limits of any port. This Act was repealed in 1986 by the Child Labour (Prohibition and Regulation) Act, 1986.  The Apprentices Act, 1961 provides that no person shall be qualified for being engaged as an apprentice to undergo apprenticeship training in any designated trade unless he is at least 14 years of age and satisfies such standards of education and physical fitness as may be prescribed.  Bidi and Cigar Workers (Conditions of Employment) Act, 1966 provides that no child should be required or allowed to work in any industrial premises. The employment of young persons between 14 to 18 years is prohibited between 7.00 P.M. to 6.00 A.M. the Administration of the Act rests with the State who will appoint Chief Inspector or Inspector for the purpose.  The Shops and Establishments Acts, several States have enacted Shops and Establishments Act to regulate the conditions of working establishments. The provisions, under these Acts regulate the daily and weekly working hours.  The issue of child labour is an important problem before us and it is not a new one. The children were exploited more or less in all period of time even in ancient India. The Government of India has enacted 13 major legislative enactments to provide legal protection to children which has already been discussed as above and the names of same are indicated below :  The Children (Pledging Labour) Act, 1933, The Employment of Children Act, 1938, The Minimum Wages Act, 1948, The Factories Act, 1951, The Plantation Labour Act, 1951, The Mines Act. 1952, The Merchant Shipping Act, 1958, The Motor Vehicles Transport Workers Act, 1961, The Apprentices Act, 1961, The Atomic Energy Act, 1962, The Bidi and Cigar Workers (Conditions of Employment) Act, 1966, The Shops and Establishments Act, 1969 (State-wise), Child Labour (Prohibition and Regulations) Act, 1986. Occupation Prohibited in the List are Transport of passengers, goods or mail by railway. Cylinder packing, clearing of an ash pit or building operations. Work in catering establishment at a railway station. Work relating to construction of railway station or with any other work where such is done in close proximity or between the railway lines, and A port authority within the limits of any port. The Process Listed in Act as Part B are Bidi making, Carpet Weaving, Cement manufacture including bagging of cement, cloth printing, dyeing, weaving, manufacture of matches, explosives and fire works, mica cutting and splitting, shellac manufacturing, soap manufacture, tanning, wool clearing, building and construction industry. Even with all these legislations the implementation of child labour has been very ineffective. The eradication of child labour requires the co-operation of Government, Employers, Employees Organizations. Non-Governmental Organizations, concerned with the child wet fare. A careful survey shall be conducted by private or Government agencies with the independent and judicious persons in the helm of its affairs to find out the instances of crime against children.  In order to turn dreams of right for the world children, mentioned in the convention into reality concerted efforts of all sections of society including the Governments. International organisations, NGOs, private groups and individuals are essentially required.  The participation of the individual in this task is rather very important. They should be made aware of the rights of the child and that they insist on the point that the rights of the child must be respected. The use of documentary and feature films, cinema slides with appropriate slogans, hoardings and meaningful illustrations, cultural programmes may be made and lessons on the rights of the child be given to the students.  The children shall have not only to propagate the ideas of their rights among the adults but also have to assist the Committee on the Rights of the Children for checking the rising population.  Many a time it is observed that State does not lake required interest in the activities directed to promote the rights of the child as political or other considerations find priority over them. So what is required is that the child in association with the NEOs should be enabled to get this rights enforced instead of State which may or may not exercise its powers.  The children should be accepted to have a Fundamental Right to Jive with his parents, if not real, at least adopted. The UN convention in Article 6 and NCP in Pare 10 (XV) recognise this right. The destitute and deserted children in India should be provided with ways and means of realising the right. There are other similar rights which ought to be emphasised in the case of children, for example, right to protection, family, home are not reflected even in our National Policy for children.  There is need for recognition of a fundamental right to life of children, which will include right to play and recreational activities, the right of working children to have education and development, and the right not to work.  From the executive and administrative point of view there is a need for a single department or ministry for children at the Centre. There should also be a joint committee of the Houses of Parliament on child welfare, which will in a more integrated manner must concentrate on the welfare of our children. Many activists and visionaries have advocated the need for a nationwide machinery as Child Labour Ombudsman. This also may help our country to solve many of our present problems relating to children. Positive steps should be taken for formulation and legislation of a child code of India for the benefit of children is future.

Author Name: Avimanyu Bebera