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Deepali Shukla

University: Government Law College, Mumbai Course: B.L.S. + LLB Phone number: 9930178557

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Introduction:

The Child Labour (Prohibition and Regulation) Amendment Act (hereinafter amendment) has been passed by Rajya Sabha as well as Lok Sabha after a rigorous debate. It is a tragedy that even after 70 years of independence the parliament had to discuss this oxymoron and a bigger tragedy that it came up with a regressive law like this. The act has invited criticism from UNESCO, Nobel laureate Kailash Satyarthi and other child rights advocates. The intention of the government behind passing this act was to have an implementation -friendly law which could work in present socio- cultural environment of India. However, in this process, government has compromised with the objective of achieving zero-tolerance against child labour.

Critical analysis:

Two classes have been created by the amendment one of a child and other of an adolescent.

1 Age of child has been defined differently in various existing laws in India for e.g. Factories Act defines a person who has not completed 15 years of his age as a child whereas as per Protection of Children from Sexual Offences Act 2012, a child means a person below 18 years. However, to determine the age of the child in the concerned act government has used Right to Free and Compulsory Education Act 2009 (hereinafter RTE) as the yardstick. There is still no consistency in the definition of child in Indian laws. RTE defines a child as a male or a female child between the age of 6 to 14 years. If the age of a child is further increased in RTE, the same will happen in the amendment act. The acts are therefore synchronised together. This also lies in line with the basic minimum age of working according to International Labour Organisation (ILO) Convention. The major reason behind this provision is that if the government is not able to provide free education after the age of 14, the child from a poor family may not be in a position to pursue his or her education due to financial constraint on one hand and on the other hand cannot work due to ban under Child Labour Act which may create a serious social/law and order problem. However, the essence of RTE is that a basic elementary education is required before one enters into any occupation so that one is aware of one’s rights and is exposed to education. Section 4 of the RTE states that a child who may have crossed 14 years of age, but has not done 8 years of his statutory elementary schooling to be admitted in a school with provisions for special training for that child to complete his/her elementary schooling. Hence adolescents who have not completed their education must be first educated and then allowed to work. This would make the law in perfect sync with principals of RTE.

2. Allowing work in family enterprise and entertainment industry

The amendment imposes a blanket ban on working in the hazardous sector for anyone below the age of 18. However, the amendment allows a child to help his family or family enterprise after his school hours or during vacation.2 Also, it allows them to work in audio –video industry and entertainment industry subject to conditions and safety measures.

3. Even Child Labour Prohibition and Regulation Act 1986 allowed working in family enterprises. The new amendment was expected to be a progressive leap and remove this provision. However, this provision has been kept intact disappointing all children. There are no norms and conditions for employment prescribed for children below the minimum age in an audio-visual entertainment industry.

Definitions of family, family enterprise and entertainment industry are too inclusive.

4 These definitions open up a range of settings for work by the child like places that any of these family members own, where any of these family members are employed or wherein any of these family members have subcontracted work; entertainment sector can include performing as a singer in restaurants and dhabbas. An employer can take the disguise of siblings of parents and employ these children (Ganotra) .These definitions are the major loopholes in the amendment.

The Ministry seems quite confused between what constitutes child labour and child work. There is a thin line of difference between children helping a family, child labour and preparing him for adult life. With regards to the conceptual and definitional problem of child labour one simple test is to list down the impact amendment has on children as they are the major stakeholders. Does working in family enterprise going to benefit children mentally, socially and physically? The educational development has to go hand in hand with mental, social and physical development. Hommerfolks, Chairman of United Nation Child Labour Committee has defined Child Labour as “Any work by children that interfere with their full physical development, their opportunities for a desirable level of education and of their need for RECREATION.” If children are made to work in the family enterprises after their school hours, the fatigue faced by them won’t give them any leisure time for social interaction, exercises, sports or even completing homework. This task leaves children too tired for active participation in any other activity. Moreover, this can have a far -reaching effect on the education of the children. It will devastate their health by overburdening them with work which in turn might increase the school drop –out rate or be the cause of irregular attendance. So, instead of supplementing RTE it will defeat its main purpose.

The massive amount of Indian child labour is engaged in family employment where they work from dawn to dusk. According to the report of Bachpan Bachao Andolan, 21% of all the rescued children below the age of 14 worked in some sort of family enterprise.5Working at home or in workshops, through long hours in unhealthy environments, makes children’s lives extremely tiring .Even working as a part of the family is no protection when the family is exploited as in the case of plantation labour or craft manufactures. In India, we have families trapped in Intergenerationa l debts where they are brutally harassed. Hence, working for these enterprises is going to be hidden nature of work for these children.

The major argument put forth is that a child working under the family with relatives is not prone to exploitation by the virtue of blood relation and absence of employer –employee relationship. A family which is continuously pressurised by traders to complete an order way above its working capacity can in no way prevent the exploitation of children in forms of long working hours, sleepless nights and drenching work. Moreover, most of the cases of child labour are either by parent’s approval or parents themselves force kids into human trafficking. The government talks about the absence of employer- employee relationship but in this act ,it exists in latent forms. In family -based enterprise like agrarian sector children are exposed to pesticides, fertilisers, animal’s organic crop and animal dust leading to cancer and immune system abnormalities. Moreover the treacherous and back breaking work like sowing , reaping, milking animals, lifting heavy and awkward loads hinders their physical development(Narasiah,2)Most of the family employed in agricultural sector involve a great deal of labour input which involves six hours of works and face exploitation by the middlemen. Since most of India’s child labour is caste-based work, this is going to cement traditional caste system.

Under the cover of training, children are made to work for hours as they have very weak bargaining position in front of their parents. This is in addition to the emotional abuse they face in case of small mistakes and errors (Konikar, 105). Carpet weaving and jari industry are few examples of family- based enterprises involving traditional skill. In activities like carpet weaving children are packed into shreds in long rows behind giant looms. About 60% of the children working in carpet weaving industries are asthmatic or have other lung diseases caused by breathing cotton dust and wool fiber (Narasiah ,12).It is not the question of a child working out of a hobby or to learn a tradition, it is a situation where they are forced to work in appalling condition without consent. What may seem to be unhazardous for an adult can prove to be extremely harmful to children. Under the disguise of traditional skill these children will continue to be exploited and this provision of the act is going to be extremely misused.

Life of a child labourer can be categorised into two phases-

First: where he works along with some kind of education.

Second: where the child only works and does not attend any form education.

If the first stage is legalised it will take no time for a child to move to the second stage.

If the law permits home- based work, these children will be ceased from any form of protection. This is no way going to further the benefit of the children due to aforementioned reasons. Helping in a family is something very obvious; there is no requirement for legislation to give it legitimacy. By enacting the act in this way the government has created a loophole which is only going to increase the magnitude of the child labour.

Poor skills and vocational training conspire to keep children as a child labourer. Vocational training and skills should be part of school curriculum so that children are prepared for their entry into the world of work especially for children who have reached the minimum legal age for employment in their country so that they can find decent employment.

6 Reducing number of hazardous activity

Adolescents are allowed to work in the non-hazardous industry and the number of hazardous industry has been reduced drastically from 83 to 3. The central government may add or omit any hazardous occupations from the list including the act.7 List of hazardous industries has been very haphazardly copied from Factory Act. The point to be noted here is that Factories Act is legislation for adult and the processes defined under the act are defined keeping in view adults and not children.

Various activities like domestic help, rag picking have been excluded from the hazardous sector but experiences under these industries can be extremely tormenting and may have a serious effect on the mental health of adolescents. For e.g. while rag picking, adolescents might cut themselves by pieces of glass bottles, wire and working under such unhygienic condition might cause a serious problem like diarrhoea. Working as a domestic helper is extremely exploitative as these children are scolded on a daily basis and kept away from their families. The amendment has looked at the definition of hazardous works from a very narrow perspective whereas it should have been kept as broad as possible to safeguard adolescents from any kind of exploitation. However, Government can add or remove the number of hazardous industries by a notification. The time, for which these activities are kept out of the ambit of the act, adolescents are exposed to danger. Hazardous work is defined as work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of Children.8 In determining the types of hazardous processes, consideration should be given to ILO convention no. 182. ILO Worst Forms of Child Labour Recommendation 190 defines hazardous work as work that exposes children to physical, psychological or sexual abuse; work underground, under water, at dangerous heights or in confined spaces; work in an unhealthy environment, and work under particularly difficult conditions such as work for long hours or during the night.

 

No punishment to parents for the first time offence :
Punishment for employers has been doubled in regards of both imprisonment and fine. Minimum punishment has been kept as 3 months which can be extended up to 2 years or a minimum fine of 20,000 rupees which can be extended up to 50,000 rupees. For repeat offenders, minimum punishment has been as kept 1 year which can be extended up to 3 years. Parents and guardians of kids are excused from punishment if they permit their child or adolescents to work in contravention of the provision. However, if they repeat the same offence again they are to be punished with a maximum fine of 10,000 rupees. 9

Parents are exempted from the punishment for the first time offence. Though it is accepted that parents are the perpetuators of child labour, but in most of the cases they send their kids to work due to dismal financial condition of the family. It becomes difficult for the family to pay a huge amount of fine and if parents are imprisoned children are left without guardian leaving them vulnerable and ultimately forcing them to work. More than a deterrent it acts as a reason for kids to bring in more income. Considering the lack of awareness there are high chances that parents might send their adolescents to work without even being aware of the hazardous list.10This move should be welcomed and appreciated. An alternative source of income should be provided to the family for the eradication of child labour and that employment should be provided to an adult in the family in lieu of a child working in a factory or mine or any other hazardous work.

Child and adolescents rehabilitation:
The amendment simply states that the child or adolescent, who is employed in contravention of the provisions of this Act and rescued, shall be rehabilitated in accordance with the laws for the time being in force. It would have been better if an elaborate plan was proposed instead of relying on some future legislation. The Amendment calls for the establishment of the Child and Adolescents Rehabilitation Fund (hereinafter fund) in every district or for two or more district. The entire fine realised from the offenders is to be credited to the fund along which appropriate government will credit an amount of 15,000 rupees for a child or adolescent for whom the fine amount is credited. This amount has to be invested or deposited in the bank as the appropriate government may decide. The invested amount along with the interest is to be paid back to the child or adolescents in whose favour the amount has been credited.11Power to ensure that provisions of this act are effectively carried out is conferred upon the District Magistrate. 12 The amount that will be secured as a fine can help these children and adolescents to start a better life if utilised for their further education or for their family. This provision was missing in the original act and is one step forward in solving the problem of child labour. The Act, however, does not go into detail and provides no information as to when the children will have legitimate claim over the credited amount .It has touched upon an essential provisions but does not go into detail. A basic model should be put forward which could serve as building block for different State Rehabilitation Programs. Without the proper guide-lines for rehabilitation, the task of saving children is not over.

Conclusion:

The amendment has been formulated with adult – driven perception of the child labour. A detailed analysis of the act brings forth many loopholes which can be used as an escape mechanism by the culprits. There are few provisions in the act which are welcomed but the overall amendment is insufficient to rescue a child from the clutches of child labour. If children are allowed to work in family enterprises and list of hazardous industries is not increased for the adolescent the anti-child labour movement will face a major set- back. There is no doubt that the amendment will worsen the status quo and this makes it imperative that the issue is re-visited.
1 “adolescent” means a person who has completed his fourteenth year of age but has not completed his eighteenth year;’child” means a person who has not completed his fourteenth year of age or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009, whichever is more;’
2 The Child Labour (Prohibition And Regulation) Amendment Act ,2016 no. 35 of 2016 , S. 5
3 Id.
4 (a) ‘‘family’’ in relation to a child, means his mother, father, brother, sister and father’s sister and brother and mother’s sister and brother;(b) ‘‘family enterprise’’ means any work, profession, manufacture or business which is performed by the members of the family with the

engagement of other persons;
5 Bachpan Bachao Andolan, ”Employment of children in hazardous and family run business”, available at http://bba.org.i n/sites/default/ files/Employment %20of%20Children %20in%20Hazardou s%20and%20Family %20Run%20Busines s.pdf , pg. 9, accessed on October 31,2016
6ILO, “Employers and workers handbook on hazardous child labour”, available at http://www.ilo.o rg/public/englis h/dialogue/actem p/downloads/proj ects/cl_handbook .pdf, pg. 9,accessed on October,31,2016
7 Supra note 2,S. 6
8 Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, art. 3(d), June 17 ,1999,2133 U.N.T.S.161
9 Supra note 2, S. 8
10 See MC Mehta v State of Tamil Nadu Writ Petition (civil) No. 465/1986 (India)
11 Supra note 2, S. 19
12 Supra note 2, S. 20


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