lawyers in India

Child Labour laws in India - Juvenile Laws

Written by: Shreyansh Chouradia - 1st year, 2nd semester, Studying in Hidayattullah National law University, (Raipur, C.G.)
Medico-legal in India
Legal Service
  • A Child is a father of the man. This famous line quoted by William Wordsworth refers to the importance of the child in a society for the development of society as well as for the development of the whole nation. For welfare and development of the nation, a child should be introduced to high education and should be devoid of several social evils. One of these evils is CHILD LABOUR. Child labour is a practice usually followed in developing and underdeveloped countries. India, unfortunately, is one of them.

    Child labour is work that harms children or keeps them from attending school. The various problems arising in the countries economic, political and social condition is one of the major reasons for growth of this problem. The International Labour Organization estimates that 246 million children between the ages of 5 and 17 currently work under conditions that are considered illegal, hazardous, or extremely exploitative.
    United Nations secretary General Kofi Annan quoted, "Child labour has serious consequences that stay with the individual and with society for far longer than the years of childhood. Young workers not only face dangerous working conditions. They face long-term physical, intellectual and emotional stress. They face an adulthood of unemployment and illiteracy."

    Also former president of India and a well known scientist 'Dr. APJ Abdul Kalam Azad' said, All of us should feel proud on all literate, intellectuals, entrepreneurs and affluent citizens of the country but it should not be forgotten that such categories of persons are almost surrounded from all corners by large number of people who are poor, illiterate and malnutrition. They make our life comfortable and worth living by hard work of day and night and it may be dangerous to neglect them ....

    Who Is A Child?

    Definition of child is subjective and depends upon the matters it is related to.
    In general term child is used for a person who on account of his young age, is considered to be of immature intellect ad imperfect discretion and thus unable to comprehend the consequences of his own act. Such a person is known as minor.

    According to article 1 of United Nations Convention on Rights of the Child 1989:

    A child means every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier.
    In case of child labour the definition of child can be referred under Child Labour (Prohibition and Regulation) Act 1986 it states that:
    Child means a person who had not completed 14 years of age.

    From the above point, it is clear that a person up to the age of 14 year is a child while concerning child labour. Convention 59th of International Labour Organization lays down that -
    No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

    Some Important Acts formulated to combat the problem of Child Labour

    a. Minimum Wages Act, 1948: It provides for fixation of minimum time rate of wages by state government. It also includes the fixation of minimum piece rate of wages, guaranteed time rates for wages for different occupations and localities or class of work and adult, adolescence, children and apprentices. The act is aimed at occupations, which are less well organised and more difficult to regulate…where there is much scope for exploitation of labour.

    b. The Plantation labour Act: The employment of children between the ages of 12 years is prohibited under the Act. However, the act permits the employment of child above 12 years only on a fitness certificate from the appointed surgeon.

    c. The Mines Act, 1952: It states that no child shall be employed in any mines nor shall any child be allowed to be present in any part of mine, which is below ground, or in any open cast working in which any mining operations being carried on.

    d. The Merchant Shipping Act, 1958: The act prohibits employment of children below the age of 14 in a ship except a training ship, home ship or a ship where other family members work. It also prohibits employment of young persons below the age of 18 as trimmers and stokers except under certain specific conditions.

    e. The Apprentices Act, 1961: It states that no person shall be qualified for being engaged as an apprentice to undergo apprenticeship training in any designated trade unless he is 14 years of age and satisfied such standards of education and physical fitness as may be prescribed.
    However, across the world, millions of children do extremely hazardous work in harmful conditions, putting their health, education, personal and social development, and even their lives at risk. These are some of the circumstances they face:
    • Full-time work at a very early age
    • Dangerous workplaces
    • Excessive working hours
    • Subjection to psychological, verbal, physical and sexual abuse
    • Obliged to work by circumstances or individuals
    • Limited or no pay
    • Work and life on the streets in bad conditions
    • Inability to escape from the poverty cycle -- no access to education

    What leads to Child Labour

    The question arises in every mind concerned with child labour that what leads to child labour. The answers can be obtained from the following points:
    a.) Poor family and less income leads to child labour. The child is forced to work and earn at a very lower age. It becomes a compulsion for them to work and earn livelihood for themselves and their families. Thus a child for the sake of his family is compelled to work in several places.
    b.) Ignorance of parents towards education results in lack of education of child and he have no other options but to work and earn his livings.
    c.) Children are found to be better producers of certain products such as knotted carpets and other such kinds of goods. Hence, these children are hired and exploited to work and produce such types of goods. This is known as NIMBLE FINGER THEORY.
    d.) Discrimination on grounds including gender, race or religion also plays its part in why some children work at such tender age.
    e.) Child trafficking is another cause of child labour. A number of children are bought and sold and are exploited to work as labourers, beggars, domestic workers, etc.
    f.) In domestic matters, children can be made to work easily and at the low wage. Moreover, the masters can dominate them easily. Thus, the number of children working in households constitutes the major part of child labour.

    Where do children work?

    • On the land (agricultural land, mining lands, etc.)
    Nearly 70% of child labour occurs in agriculture, fishing, hunting, and forestry. Child labourers suffer extremely high illness and injury rates in underground mines, opencast mines, and quarries.
    • In households -- as domestic workers
    Many children, especially girls, work in domestic service, sometimes starting as young as 5 or 6. This type of child labour is linked to child trafficking. Domestic child labourers can be victims of physical, emotional, and sometimes sexual abuse.
    • In factories - and other hazardous areas
    About 15 million children are estimated to be directly involved in manufacturing goods for export.
    • On the street -- as beggars
    • Outdoor industry: brick kilns, mines, construction
    • In bars, restaurants and tourist establishments
    • In sexual exploitation
    Girls are often obliged to be sex slaves or "soldiers' wives".
    • As soldiers
    There are about 300,000 child soldiers involved in over 30 areas of conflict worldwide, some even younger than 10 years old.
    • Child trafficking

    8.4 million Children are involved in work that, under any circumstance, is considered unacceptable for children, including the sale and trafficking of children into debt bondage, serfdom, and forced labour. It includes the forced recruitment of children for armed conflict, commercial sexual exploitation, and illicit activities, such as producing and trafficking drugs.

    Most unfortunate thing of the society is that it does not look upon child labour much seriously. Infact, there are certain theories which argue that working of children should not be considered as child labour as they are for the benefit of the children and society. Some of these theories are:
    a.) Nimble Finger theory: This theory argues that dextrous hands of child are essential for production of several articles of better quality like knotted carpets and similar types of articles.

    b.) Poverty argument theory: This theory advocates that the employers are giving the employed child and his/her family favour by providing them their livelihood. However, this is based on purely false and mistaken sympathy.

    c.) Child workers not child labourers: Some argue that if a child works in developed states it is known as child work and if he/she works in a developing society as India, it is considered as child labour. According to them, it is wrong to consider children working as child labour as this also lead to development of a country. However, this conception is also declared untrue.

    Child labour has a different meaning with child work (in bahasa Indonesia these terms gives the same meanings). UNICEF defines Child Work as:
    Children's participation in economic activity that does not negatively effect their health and development or interfere with education can be positive. Work that does not interfere with education (light work) is permitted from the age of 12 years under the International Labour Organization (ILO) Convention 138.

    While the definition of Child Labour:
    This is more narrowly defined and refers to children working in contravention of the above standards. This means all children below 12 years of age working in any economic activities, those age 12 to 14 years engaged in harmful work, and all children engaged in the worst forms of child labour.

    Why Child labour considered as a burning problem?

    There are many problems, or it is better to say, a chain of problems linking with child labour. These are both economic as well as social. The social aspect is somewhat abstract and vast whereas the economic aspect is simple and mainly revolves around major problems like poverty, unemployment, etc. The social aspect revolves around what the people think and how do they react towards this problem and what action do they take against it. Some of the ill effects of child labour are listed below:
    1. Many children in hazardous and dangerous jobs are in danger of injury, even death.
    2. Most of the children involved in child labour are devoid of their education and hence lead to illiterate and ignorant citizens.
    3. Working in dangerous and poisonous areas like mines and factories cause detriment to their health.
    4. Working of children as sex slave is another threat to our society and its morals.
    5. Working of child at such a tender age results in psychic or physical disorders.
    6. The children are given very low wages as compared to the adults and thus they live in unhygienic and poor habitats.

    These are some of the ill effects which proves that child labour is a burning problem of the world and must be looked up seriously not only for the welfare of a child but for the welfare and development of the whole nation.

    Statistical Information

    Child labour is growing at a very fast rate. How big is really this problem?

    The question is very vague and somewhat difficult to answer. However, according to certain statistics an estimate can be drawn out to introduce ourselves to the size of the problem. Certain statistics concerning the number of child labour given below:
    1. Survey by National Sample Survey Organisation in the year 1977-78 estimated the percentage of labour force was around 11% whereas in 1993-94 the percentage came down to 6.2%.
    2. The 1981 Indian census reports that there were 13.6 million child labourers in India (Census of India 1981 cited in Weiner 1991, 20).
    3. In 1991 census of India, the numbers indicated 11.28 million child labourers.
    4. Survey by National Sample Survey Organisation 1993-94 estimated 13.3 million out of which 10.1 million to be employed full time.
    5. Although the figure for the number of child labourers varies, they are all significantly high when considering that the Child Economic Activity rate for 1980-1991 was 13.5% for males and 10.3% for females (International Labour Organization, 1995, 113).
    6. In comparison, other developing countries such as Sri Lanka and Malaysia (where data is available), have lower activity rates: 5.3% for males and 4.6% for females in Sri Lanka, and 8.8% for males and 6.5% for females in Malaysia (International Labour Organization, 1995, 113).
    7. The International Labour Organization estimates there are
    218 million working children aged between five and 17 (2006)
    8. 126 million are estimated to work in the worst forms of child labour -- one in every 12 of the world's five to 17 years olds (2006)
    9. 74 million children under 15 are in hazardous work and should be "immediately withdrawn from this work" (2006)
    10. 8.4 million children are in slavery, trafficking, debt bondage and other forms of forced labour, forced recruitment for armed conflict, prostitution, pornography and other illicit activities (2002)
    11. Girls are particularly in demand for domestic work
    12. Around 70 per cent of child workers carry out unpaid work for their families.
    13. According to the Government, the number of working children, estimated at 17.58 million in the 43rd round of child labour estimates, rose to 18.17 million in 1990 and will be 20.15 million in the year 2000.
    14. The estimate of Operations Research Group in a study sponsored by the Labour Ministry reveal that about 44 million children in the 5-14 age group are in the labour force. A subsequent assessment has placed the figure of working children even higher at 114 million.

    Many people argue that child labour takes place mainly due to self-will of the child involved in labour. They are of the opinion that neither the parents want their child to go to school nor the child want to go to the school, rather, they want to earn a few sum of money just by working in some hotels, factories, or other places. However, this assumption purely a myth. The fact is that it is the circumstances that led to involvement of child in forced labour. No child will want to work in such a hazardous and miserable conditions. Following examples will clear the misconceptions:

    a.) "When I first moved to Port-au-Prince I cleaned dishes, the house, everything. My 'aunt' would beat me whenever I didn't get water. I worked so hard that my body ached and I couldn't move, but she would beat me if I didn't do more work. Her three children went to school...One day my aunt sent me to fetch water. I refused, so she took a pot of boiling water and threw it at me and burned my face and slammed the hot cooking pot on my hand."
    Dieusibon , 14, ran away and found help from a shelter in Haiti.

    b.) In Pakistan, brothers Mohen and Nihal began working on carpet looms when they were four and five years old in order to help their family meet, their basic needs. "The health hazards caused to us are that our fingers are trimmed and we have to work all day long. Often for a couple of days in a week, we have to work for the whole day and night. Mohen often gets miserable and fatigued with the long hours or work and he tries to escape. Then the master weaver keeps a strict watch on him and never lets him move for three or four days.

    c.) When Ahmed was five years old he was trafficked from Bangladesh to the United Arab Emirates to be a camel jockey. He was forced to train and race camels in Dubai for three years.

    "I was scared .... If I made a mistake I was beaten with a stick. When I said I wanted to go home I was told I never would. I didn't enjoy camel racing, I was really afraid. I fell off many times. When I won prizes several times, such as money and a car, the camel owner took everything. I never got anything, no money, nothing; my family also got nothing."

    Ahmed was only returned home after a Bangladesh official identified him during a visit to Dubai in November 2002.

    Thus, the above examples make it clear that how are the children, forced to work, are treated and no one will want to be in a situation like this unless bounded by shackles of misery and poverty. Hence, it is the circumstances that make it a compulsion for these children to work as a labour.

    Legal actions and plans by Govt

    The elimination or removal of child labour is a very difficult task, if not impossible. The problem of child labour is overlapped and inter connected adhesively with the world's major problems such as population, poverty, illiteracy, unemployment and others. Thus, for elimination of this evil, it requires concerned efforts from all sections of the society.

    However, the legislation is trying for the regulation of child labour in our country. The first attempt at child labour legislation was made by Factories Act 1881. Then in 1911, the Factories Act prohibited employment of children in dangerous occupations and working during night hours.

    The first convention of ILO compelled amendment of the act in 1922, to raise the minimum age of the children to work to 15 years. Children below 13 years were prohibited for employment. However, the age was raised to 13 years in 1935 under the Act.

    The present Factories Act 1948 prescribes prohibitory actions for employment of children below 14 years of age in any factory.
    Indian Mines Act, 1951 prohibits employment of children below 16 years in any underground mines.

    After the enactment of these acts, the main instrument for the regulation of child labour was launched by the legislature in the year 1986. This was the Child Labour (Prohibition and Regulation) Act 1986. It came into being due to the requirement of ILO convention and foresee ness of National Seminar on Employment of Children in 1975, to prevent exploitation of children. Indian government felt a need to enact a single law to deal with prohibition of Child Labour. In 1979, Gurupadswamy committee was setup to study the problem of child labour and evolve the measures to sort out this problem. This committee also agreed for the enactment of a single law to govern child labour. The Committee examined the problem in detail and made some far-reaching recommendations. It noted that any attempt to abolish it through legal recourse would not be a practical proposition. The Committee felt that in the circumstances, the only alternative left was to ban child labour in hazardous areas and to regulate and ameliorate the conditions of work in other areas. It recommended that a comprehensive policy approach was required in dealing with the problems of working children. Based on the recommendations of this committee, the Child Labour (Prohibition & Regulation) Act was enacted in 1986. The Act prohibits employment of children in certain specified hazardous occupations and processes and regulates the working conditions in others.

    The list of hazardous occupations and processes is progressively being expanded on the recommendation of Child Labour Technical Advisory Committee constituted under the Act.

    The Conventions of the International Labour Organization, the 1926 and 1956 Slavery Conventions and the UN Convention on the Rights of the Child are the major tools used for regulation of the child labour.

    The other instruments used for the eradication or regulation of child labour were:

    Article 32 of the UN Convention on the Rights of the Child (1989)

    "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.

    Convention 182 of the International Labour Organization (1999)

    The main aim of Convention 182 is to eliminate the worst forms of child labour. It stresses that immediate action is needed to tackle the worst exploitation of children and that measures taken by the authorities should start as soon as the government is able following ratification.
    Moreover, the Indian government has taken a step forward by enacting a law to ban domestic work and some other forms of labour by children under age 14. The new law covers restaurant and hotel work as well as domestic labour. However, it provides no protection for children aged 14 to 18, who also face exploitation and abuse by their employers.

    This ban on child domestic labour is a welcome step, but changes on paper are not enough, said Zama Coursen-Neff, senior researcher for the Children's Rights Division of Human Rights Watch. If the Indian authorities are serious about protecting children from hazardous labour, the state governments should start prosecuting abusive employers and rehabilitating child workers.

    The major problem infront of the legislature and the government is to rehabilitate the children deprived from the works. As the work they were doing was the only source of their income, it is important for the government to take certain steps for rehabilitation of these children.

    The Government has been alive to the need for release of these children from hazardous work and for their rehabilitation - physical, emotional and economic- through education. With this end in view, the National Policy on Child Labour was formulated in August 1987. The National Child Labour projects were conceptualized and launched around the same time. Later on this was reinforced and strengthened for the total liberation of all children in the age group of 5 to 14 employed in hazardous work and for their physical and emotional rehabilitation through a composite package under the National Child Labour Projects which are to be administered by the District Child Labour Project Society registered under the Societies Registration Act, 1960. Under the scheme 12 National Child Labour Projects (NCLP) were started in Andhra Pradesh (Jaggampet and Markapur), Bihar (Zarwah), Madhya Pradesh (Mandsaur), Maharashtra (Thane), Orissa (Sambalpur), Rajasthan (Jaipur), Tamil Nadu (Sivakasi) and Uttar Pradesh (Varanasi-Mirzapur-Bhadoi, Moradabad, Aligarh and Ferozabad)….. For the Tenth Plan period, the Planning Commission has allocated Rs.667.50 crore for child labour schemes.

    Many other organisations (both governmental and N.G.O.'s) are stepping forward for the upliftment of these children and regulation and eradication of child labour. Some of these institutions or organisations are CRY, Child Rights Information Network, Concerned for Working Children (CWC), Global march, International Organisation of Employers. Partnership for child development, etc.

    However, even after acting of these institutions only a fewer cases of child labour can be solved. The main problem being poverty and illiteracy. The number of children not getting primary education is very high, particularly in India. Thus to tackle the problem steps should be taken in more specialized manner. There is a need to impart education to the child workers. Though they cannot attend the normal schools during the usual school timings, the only alternative is to provide them with some agency of education at a time when they are free . For this purpose, however, various governmental as well as non-government organisations have set up certain night schools in various places. This system will definitely make them right conscious and realize the benefits, which are given to them by the government and legislature. An important step taken by the government is the well-known Sarva Sikhsha Abhijan, which aims at globalization elementary education that is education from 6-14 years.

    All the above policies seems to be useless when one founds that Government is itself involved in the practice of this evil. Many cases have been brought out which gives a clear evidence involvement of Government's hand in this matter. In many of the small states, including the newly formed Chhattisgarh, and the older ones like Karnataka, mManipura, etc. India ratified the Convention on the Rights of the Child on December 11, 1992. Children are often forced to take up arms in India after losing a close relative in the conflict.

    The other cause is of enforcement and implementation. The legislature makes the law efficiently but where we fail is the area of implementation and enforcement of these laws. There are various areas where even now a number of children are working as domestic workers, in restaurant and small dhabas. However, the society is responsible on the same line parallel to the government is. Without the help of the common people, no government can solve this heinous devil known as child labour.

    Thus child labour is still a burning problem in India and we must be ready and, more importantly, willing to combat this evil which is spreading its wings larger day by day. However, the government is trying but without the concern of the people, this problem cannot be eradicated. The recently conducted surveys are telling that laws enforcements leaves lot to be desired. On the other hand if a child or his/her parents are unaware of the rights they are privileged with, it makes the task harder. If the family is poor and illiteracy resides in the houses, it becomes a very difficult matter, if not impossible, to eradicate this problem solely by the government itself. Therefore, if the society and the government work together hand in hand, it would be an able effort to regulate and eradicate this problem from our country and make it a better country of our dream. The Latin Maxim 'boni judicis est ampliare juridictionem' (meaning law must keep pace with the society to retain its relevance, for if the society moves but law remains static, it shall be had for both. ) must be followed practically. Children are our assets. The common people should consider this quote and the children's must utilize their potential for the welfare of the nation and to make our DREAM NATION the TRUE NATION.

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