Legal Aspects Of Child Labour In India
CHILD LABOUR AND INDIA- AN ANALYSIS OF VARIOUS CONSTITUTIONAL AND STATUTORY PROVISIONSINTRODUCTION
Child labour has been in India from a long time in some form or the other. Practice of child labour in match box industries, glass bangle industries and is very commonly seen in cheap restaurants and dhabas etc. Generally speaking child labour can be said to be the exploitation or abuse of children in factories, industries etc, who are below the age specified by law working (mentally or physically) to earn for his/her own survival or to support his/her family partially or fully, and which prevents his/her social and education development may be said to be “child labour”. The reasons which are generally responsible for child labour may include [1] :
Poverty,
Ignorance,
Illiteracy,
Population explosion,
Lack of knowledge of their own rights,
Big amounts of debt on the parents,
Large size of family but not enough income to support such big family,
Lack of social security scheme in the country,
Weak enforcement of labour laws.
According to an U.N.O report India has the maximum child labour in the world i.e. approx 20 per cent. [2] On the basis of Census 1991 and various governmental and non-governmental organizations following are the number of child labourers in India [3] :
Census 1991 – 2.63 crore,
Organization research group, Baroda, 1994-95 – 4.44 crore,
Centre for concern of Child Labour – 10 crore.
Extra-governmental volunteer organization – more than 5 crore.
The numbers may vary according to different organizations but the fact is clear that the numbers of child labourers in India are in crores, which is again a pathetic sight, especially with all the various child labour legislation and the Constitutional provisions. In a report by the Labour Ministry every 4th child is a child labour, aged between 5-14 years and there is one child labour in every three families. [4]
But it’s not as if Indian governments haven’t done anything about this grave social stigma, over the years it has enacted many statutory legislations and Constitutional provisions in order to eradicate the problem of child labour, to name some of them, we have:
Labour legislations:
The Child Labour Act, 1986,
The Factories Act, 1948,
The Mines Act, 1952,
The Right of Children to Free and Compulsory Education Act, 2009,
The Minimum Wages Act, 1948,
The Juvenile Justice (Care and Protection) of Children Act, 2000
Constitutional provisions [5] :
Article 24 provides: strictly prohibits children to work in hazardous environment.
Article 21, 45 gives the right to education to all the children below the age of 14years.
Article 39 declares the duty of the State to provide the children a free facilities to develop in conditions of freedom and dignity in a healthy manner.
India is also a party to the United Nations Declaration on the Rights of the Child, 1959. India is also a signatory to:
ILO Forced Labour Convention (No. 29);
ILO Abolition of Forced Labour Convention (No. 105);
UN Convention on the Rights of the Child (CRC).
World Declaration on the Survival,
Protection and Development of Children.
The Government of India adopted the National Policy for Children (NPC) in August 1974. This Policy provided that [6] “It shall be the policy of the state to provide adequate service to children both before and after birth and through the period of their growth, to ensure their full physical, mental and social development. The State shall progressively increase the scope of such services so that, within a reasonable time, all children in the country enjoy optimum conditions for their balanced growth.”
Indian is also a party to United Nations Declaration on the Rights of the Child, 1959 and Convention on the Rights of the Child, 1992 and has formulated its labour laws in accordance to International Labour Conference resolution of 1979.
The first part of the paper aims to look into the various legislations relating to child labour. In the second part we shall look into the various precedents set by the Supreme Court of India on the issue of child labour and finally the conclusion.
Chapter 1
CONSTITUTIONLA AND STATUTORY PROVISIONS
Constitutional provisions
The government of India has enacted various labour laws has in accordance to International Labour Conference resolution of 1979. The Constitution of India, through various articles enshrined in the Fundamental Rights and the Directive Principles of State Policy, lays down that:
Article 21 (A)
The State shall provide free and compulsory education to all children of the age six to 14 years;
Article 24
No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. The word hazardous employment in Art 24 also includes construction industry, also in P.N. v. U.O.I [7] , it has been laid down that Art 24 is enforceable even in the absence of implementing legislations; [8]
Article 39(e)
States 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;
Article 39(f)
States that childhood and youth are protected against exploitation and against moral and material abandonment [9] . Hence Art 39 in whole requires the state to ensure and protect the children and provide proper child care.
Article 45
The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years
The framers of the Constitution imposed a duty on the State under Article 45 as one of the directive principles of the State Policy to provide free and compulsory education to all children until they complete the age of 14 year with the sole objective of completely eradicating illiteracy and child labour. Also many of the states had passed various Acts providing for free and compulsory primary or elementary education to children. But unfortunately years after the commencement of the Constitution the goal set by this Article which was to be achieved in 10 years, have yet not been reached. But the provision in article 39(f) and 45 of the constitution gave certain directions in providing a better quality of life of children employed in the factories.
Labour legislations
The Child Labour (Prohibition and Regulation) Act, 1986:
The Act prohibits the employment of children below the age of 14 years in 13 occupations and 51 processes that are hazardous to the children’s lives and health listed in the Schedule to the Act [10] .
The Factories Act, 1948:
The Act completely prohibits children working below the age of 14 years [11] . It further states that if a child is between 15 and 18 years of age, can be employed in a factory only if he has a certificate of fitness granted with reference to him under section 69 which is in the custody of the manager of the factory. The Act also says that no child shall be employed or permitted to work, in any factory for more than four and a half hours in any day;
The Mines Act, 1952:
The Act prohibits the employment of children in mines, who have not completed their 15th year.
The Juvenile Justice (Care and Protection) of Children Act, 2000:
This Act was last amended in 2002 in conformity with the UN Convention on the Rights of the Child covers young persons below 18 years of age. Section 26 of this Act deals with the Exploitation of a Juvenile or Child Employee, and provides in relevant part, that whoever procures a juvenile or the child for the purpose of any hazardous employment and keeps him in bondage and withholds his earnings or uses such earning for his own purposes shall be punishable with imprisonment for a term which may extend to three years and shall also be liable for fine.
The Right of Children to Free and Compulsory Education Act, 2009:
The Act states that all children aged 6 to 14 years shall be provided free and compulsory education. It further states that all private schools should allocated 25 per cent of their seats for disadvantaged and differently abled children.
Chapters 2
Precedents set by Supreme Court
Though the government of India has enacted various labour legislations to prevent child labour still there are some contradiction among them, mainly the definitional debates on child labour as different legislation provide different definition of a ‘child’. Section 2(ii) of The Child Labour (Prohibition and Regulation) Act, 1986, defines ‘child’ as ” a person who has not completed his fourteenth year of age”; Section 2(c) of The Factories Act, 1948 defines ‘child’ as “a person who has not completed his fifteenth year of age”; Section 2(e) of The Mines Act, 1952 defines ‘child’ as “a person who has not completed his fifteenth year”; Section 2(c) of The Right of Children to Free and Compulsory Education Act, 2009, defines ‘child’ as” male or female child of the age of six to fourteen years”; Section 2(k) of The Juvenile Justice (Care and Protection) of Children Act, 2000 defines ‘child’ as “a person who has not completed eighteenth year of age”; Section 2(c) of The Plantations Labour Act, 1951 defines ‘child’ as “a person who has not completed his fourteenth year of age”
Hence, we can clearly observe that these legislation are at contradiction to each other in defining who’s a child and setting an uniform age limit. Therefore the centre and respective state governments should set a uniform universal minimum age of the child as these contradictions adversely affect the objective of protection from child labour and providing a better educational and social development to children of India.
Following are few of important Supreme Court cases that have helped in framing better laws regarding child labour:
In Democratic Rights V. Union of India [12] , it was contended that the Employment of Children Act, 1938 was not applicable in the matter of employment of children in construction works, as it was not mentioned in the act. But the court held even construction work is a hazardous employment and no child below the age of 14 years can be employed as given under Art 24 of the Indian Constitution, even though construction industry has not been specified in the schedule to the Employment of children Act, 1938, thus the SC rejected the contention.
In Salal Hydro Project vs. Jammu and Kashmir [13] , the Court has restated the principle laid in Democratic Rights V. Union of India [14] that Construction work is hazardous employment and any child below 14 cannot be employed in this work.
In Sheela Barse and others vs Union of India and others [15] , Bhagawati, C.J. quoted from National Policy for the welfare of Children incorporated to provide better social and educational development to the children of India : “The Nation’s children a supremely important asset. Their nurture and solicitude are our responsibility. Children’s programme should find a prominent part in our national plans for the development of human resources, so that our children grow up to become robust citizens, physically fit, mentally alert and morally healthy, endowed with the skill and motivations needed by society. Equal opportunities for development to all children during the period of growth should be our aim, for this would serve our large purpose of reducing inequality and ensuring social justice”.
In M.C. Mehta v State of Tamil Nadu & Ors [16] , the SC gave direction to the Union and state governments to identify all children and withdraw them from working in hazardous processes and occupations, and to provide them with free and proper education as incorporated into the Constitution, Artcle 21-A. The Court also directed the Union and state governments to set up a Child Labour Rehabilitation-cum-Welfare Fund using contributions from employers who breach the Child Labour Act.
In Unnikrishnan v. State of Andhra Pradesh, [17] the SC held that every child has the right to free education till the age of 14 years. Artcle 21-A which was incorporated into the Constitution, reflects this standard.
CONCLUSION
It is said that “child is the father of man”, and the children of our country are our biggest asset. The government of India has enacted several laws in order to provide healthy social and educational environment for the children. But in spite of all the laws enacted, problem of child labour still persists in our Indian society that is because child labour laws are themselves flawed in some way or the other or suffer from poor implementation of programmes. Though awareness towards child labour has increased and now there are several NGO’s trying their best, but today what we require is to take concrete actions, the central and respective state governments need to provide for better machinery for enforcing child labour laws. Unless this is achieved our country won’t be completely free the burden of child labour.
