A review of the domestic laws in India that protect children against bonded labor and the strength of those laws. The Human Rights Watch report provides extensive review of these laws.
A number of Indian laws (even dating back to before Independence) are supposed to protect exploitation of India’s children. Article 21 of the Constitution of India provides the strongest voice against such exploitation.
In addition, the most significant and effective law with respect to bonded child labour is the Bonded Labour System System (Abolition) Act of 1976. It outlaws all debt bondage including that of children, and it requires government intervention and rehabilitation of the bonded worker. It is the most significant law owing to the fact that it has none of the exemptions from compliance that virtually nullify many of India’s other labor laws.
However, completely absence of enforcement of the law has rendered these laws ineffectual. As of 1996, there has been no conviction in India for bonded labour of children; this despite the fact that NGOs and rights groups estimate that over 15 million children are part of the bonded labour workforce and between 50 to 120 million children are part of India’s labour force.
Every industry that includes bonded child labor – the main ones being beedi, carpets, and silk – violate the Bonded Labour System (Abolition) Act and the constitutional provisions that underlie such an act. In addition, they violate a number of other laws including the Child Labour (Prohibition and Regulation) Act, the Factories Act; the Beedi and Cigar Workers (Conditions of Employment) Act; the Contract Labour (Regulation and Abolition) Act; and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act. All cases documented in this report also violate the Children (Pledging of Labour) Act, which is similar in its protections to the Bonded Labour System (Abolition) Act.
In addition, under the Indian Penal Code (IPC) rape, extortion, causing grievous hurt, assault, kidnapping, abduction, wrongful confinement, buying or disposing of people as slaves, and unlawful compulsory labor are criminal offences, punishable with up to ten years imprisonment and fines. Under the Juvenile Justice Act, 1986, cruelty to juveniles and withholding the earnings of a juvenile are criminal offences, punishable with up to three years imprisonment and fines.
Indian Constitution
Article 21 of the Constitution of India guarantees the right to life and liberty. The Indian Supreme Court has interpreted the right of liberty to include, among other things, the right of free movement, the right to eat, sleep and work when one pleases, the right to be free from inhuman and degrading treatment, the right to integrity and dignity of the person, the right to the benefits of protective labor legislation, and the right to speedy justice [S. K. Singh, Bonded Labour and the Law, New Delhi: Deep and Deep Publications, 1994, pp. 48-51]. The practice of bonded labor violates all of these constitutionally-mandated rights.
Article 23 of the constitution prohibits the practice of debt bondage and other forms of slavery both modern and ancient:
Traffic in human beings and begar are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law.
Begar is an ancient caste-based obligation, a “form of forced labour under which a person is compelled to work without receiving any remuneration (People’s Union for Democratic Rights v. Union of India [Asiad Workers’ Case], AIR 1982 S.C. 1473, paragraph 1486)”. “Other similar forms of forced labour” was interpreted expansively by the Supreme Court in 1982, when it ruled in the seminal Asiad Workers’ Case that both unpaid and paid labour were prohibited by Article 23, so long as the element of force or compulsion was present in the worker’s ongoing services to the employer. Examples of force include overt physical compulsion and compulsion under threat of legal sanction (as for example in the case of an allegedly unpaid debt), as well as more subtle forms of compulsion, including “compulsion arising from hunger and poverty, want and destitution” [For a discussion of Supreme Court decisions affecting bonded labourers, see Y. R. Haragopal Reddy, Bonded Labour System in India, New Delhi: Deep and Deep Publications, 1995, ch. 4].
The Supreme Court went on, however, to provide a helpful rule for determining exactly what situations constitute forced labor. “[W]here a person provides labour or service to another for remuneration which is less than minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the word `forced labour’… [People’s Union for Democratic Rights v. Union of India, (1982) 3 SCC 235, paragraphs 259-260]”. All labor rewarded with less than the minimum wage, then, constitutes forced labor and violates the Constitution of India.
In another landmark case, this one brought on behalf of a group of bonded quarry workers in the early 1980s, the Supreme Court ruled that “[i]t is the plainest requirement of Articles 21 and 23 of the Constitution that bonded labourers must be identified and released and on release, they must be suitably rehabilitated…. [A]ny failure of action on the part of the State Government[s] in implementing the provisions of [the Bonded Labour System (Abolition) Act] would be the clearest violation of Article 21 [and] Article 23 of the Constitution” [Neeraja Chaudhary v. State of Madhya Pradesh, 3 SCC 243, paragraph 255,[1984]].
Article 24 prohibits the employment of children in factories, mines, and other hazardous occupations (“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.” Constitution of India, Article 24). Together, Articles 23 and 24 are placed under the heading “Right against Exploitation,” one of India’s constitutionally-proclaimed fundamental rights.
Article 39 requires the state to “direct its policy toward securing” the rights of children vis-à-vis their health and their opportunity to develop themselves.
Bonded Labour System (Abolition) Act, 1976
The Bonded Labour System (Abolition) Act purports to abolish all debt agreements and obligations arising out of India’s longstanding bonded labor system [Consequently, post-act social action litigation on behalf of bonded laborers is brought under both the Bonded Labour System (Abolition) Act and the Constitution of India. For a discussion of cases see Reddy, Bonded Labour System in India, ch. 4]. It frees all bonded laborers, cancels any outstanding debts against them, prohibits the creation of new bondage agreements, and orders the economic rehabilitation of freed bonded laborers by the state. It also criminalizes all post-act attempts to compel a person to engage in bonded labor, with maximum penalties of three years in prison and a 2,000 rupee fine [The Bonded Labour System (Abolition) Act, 1976, Sec. 4, 5, 6, and 14]. According to Sec. 2(g) The Bonded Labour System (Abolition) Act abolishes the “bonded labour system” which is defined as the system of forced, or partly forced labour under which a debtor enters is meant to, and does, cover all of the many permutations of the bonded labor system in modern India.
In addition, there are numerous laws that have so many loopholes that they are rendered ineffective.
Children (Pledging of Labour) Act, 1933
This act predates Independence but remains in force. It is rarely used and rarely mentioned in discussions of bonded labor and child labor, probably because the more recent laws carry penalties that, while lenient themselves, are nonetheless stiffer than those of the Children (Pledging of Labour) Act. The act calls for penalties to be levied against any parent, middleman, or employer involved in making or executing a pledge of a child’s labor.
Child Labour (Prohibition and Regulation) Act, 1986
The Child Labour (Prohibition and Regulation) Act was enacted in 1986 and defines a child as “a person who has not completed their fourteenth year of age” [Child Labour (Prohibition and Regulation) Act, 1986, Part I, Section 2(ii)]. It does not prohibit child labor per se, nor does it set a minimum age for the employment of children. Instead, it regulates the hours and conditions of work for child laborers, while prohibiting the employment of children in twenty-five hazardous industries.
The twenty-five occupations and industries where child labor is prohibited are: beedi-making; carpet-weaving; cement manufacture; cloth printing, dyeing and weaving; manufacture of matches, explosives and fireworks; mica-cutting and splitting; shellac manufacture; soap manufacture; tanning; wool-cleaning; the building and construction industry; manufacture of slate pencils; manufacture of agate products; manufacturing processes using toxic metals and substances; “hazardous processes” as defined by the Factories Act, Sec. 87; printing as defined by the Factories Act, Sec. 2; cashew and cashewnut processing; soldering processes in electronic industries, railway transportation; cinder picking, ashpit clearing or building operations in railway premises; vending operations at railway stations; work on ports; sale of firecracker and fireworks; and work in slaughter houses. Child Labour (Prohibition and Regulation) Act, 1986, Part II (Prohibition of employment of children in certain occupations and processes), Sec. 3, Schedules A and B; as amended by Government Notification Nos. No.SO 404(E) (June 5, 1989) and No. SO. 263(E) (March 29, 1994).
Three of the enumerated hazardous industries (beedi industry, carpet-weaving, and cloth printing, dyeing and weaving) rely heavily on bonded labor and were included in the Human Rights Watch investigation. These three industries are the. The other industries discussed in this report are subject to the regulatory aspects of the Child Labour (Prohibition and Regulation) Act. However, implementation of the regulatory provisions of the act requires each state to formulate an act-specific set of rules and regulations; the majority of states have not done so as of 1996, ten years after passage of the act.
There are glaring loopholes in the Child Labour (Prohibition and Regulation) Act allow manufacturers to escape application of the law quite easily. First, those workshops “wherein any process is carried on by the occupier with the aid of his family…” lie outside this act [The Child Labour (Prohibition and Regulation) Act, 1986, Sec. 3]. The vast majority of child labor takes place in agriculture and cottage industries in the informal sector. Often, the employer does have one of his own children or a niece or nephew working alongside the rest of the children, and this is enough to take his shop out of the purview of the Child Labour (Prohibition and Regulation) Act. Even if he does not have a family member working on the premises, he is likely to say that he does, according to labor inspectors, social welfare activists and others familiar with the informal sector.
This exception gives tacit government approval to the use of child labor, when the child is a relative of the family, under conditions that would otherwise be illegal. This exception includes the use of a child labor in hazardous occupations or industries. Nor is this the only exception to the application of the Child Labour (Prohibition and Regulation) Act. The act is also inapplicable to government-sponsored schools or training programs. Again, this means that work and conditions ordinarily deemed harmful to children are considered non-harmful so long as they take place under the auspices of an official government program. The best examples of this exception are the approximately two hundred government-run carpet weaving training centers. Carpet weaving is a hazardous and therefore prohibited industry under the Child Labour (Prohibition and Regulation) Act. Under the exception for government schools, however, thousands of children are enrolled in this industry, not only with government approval, but with government facilitation and encouragement.
These exceptions are clear violations Article 24 of the Indian Constitution, which states that “no child below 14 shall be employed in any factory or mine or engaged in any hazardous employment.”
These loopholes create daunting enforcement difficulties in the beedi, carpet, and silk industries-the three industries that are both heavily bonded and where child labor of any sort is outlawed by the Child Labour (Prohibition and Regulation) Act. The same difficulties would be noted in the other prohibited industries of the act.
Factories Act, 1948
The Factories Act strictly forbids the employment of children less than fourteen years old in factories. It also includes a sizable loophole, in that the act only applies to factories employing ten or more people with the use of electric or other forms of generated power, or twenty or more people without the use of power. Many small scale industries intentionally fragment the manufacturing process into separate units in order to circumvent application of the Factories Act [To get around this restriction, factory owners have been known to “partition their premises and isolate the areas where work is being done with power”; See Burra, Born to Work, p. 75] and thereby employ children. Others only employ small numbers of people on the books, bringing in dozens of others as unofficial “extras.”
Beedi and Cigar Workers (Conditions of Employment) Act, 1966
Scheduled Castes/Scheduled Tribes Prevention of Atrocities Act, 1989
This act defines any kind of forced labor, including bonded labor, as an “atrocity” if the victim is a member of a scheduled caste or tribe.
Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979
It requires that establishments employing inter-state migrant workers be registered, that contractors be licensed and that they keep records of all migrant workers recruited, that migrant workers be paid at the same rate as non-migrant workers, and that inspections be carried out to ensure compliance with these provisions [The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979, ch. II – ch. VI].
Contract Labour (Regulation and Abolition) Act, 1970
This act regulates the use of contract labor and provides for its abolition in certain industries, at the discretion of the appropriate government (state or central). Among its provisions are requirements that no wage period exceed one month [The Contract Labour (Regulation and Abolition) Act, 1970, Sec. 6, 10, and 64].
Minimum Wages Act, 1948
The Minimum Wages Act sets the minimum wage for certain enumerated occupations and requires that overtime be paid to all workers who work beyond a “normal working day.” In the case of children under fourteen, a “normal working day” is four and a half hours.
Plantation Labour Act, 1951
This act regulates the work and wage conditions of plantation workers, including children over the age of fourteen.
Apprentices Act, 1961
The Apprentices Act regulates the rights and work hours of apprentices, and sets the minimum age for apprenticeships at fourteen years.
Shops and Establishments Act, 1961
This law, which applies to shops, hotels, restaurants, and places of amusement, regulates the hours of work and prohibits the employment of children below a certain age, to be determined by the states. In eleven states, the minimum age for a child worker is fourteen years; in thirteen states, the minimum age is twelve years.
In addition to domestic laws, India is a party to numerous international human rights conventions and is thus legally bound by them. An extensive review is presented by the Human Rights Watch report on bonded labor in India.
These laws include
Convention on the Suppression of Slave Trade and Slavery, 1926
This convention requires signatories to “prevent and suppress the slave trade” and “to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms.” It also obligates parties to “take all necessary measures to prevent compulsory or forced labor from developing into conditions analogous to slavery”. Convention on the Suppression of Slave Trade and Slavery, signed at Geneva, September 25, 1926; Protocol Amended the Slavery Convention, signed at Geneva, September 25, 1926, with annex, done at, New York, December 7, 1953, entered into force, December 7, 1953. A slave is someone “over whom any or all of the powers attaching to the right of ownership are exercised.” Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, done at Geneva, September 7, 1956; entered into force, April 30, 1957 (Supplementary Convention).
Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 1956
The supplementary convention on slavery offers further clarification of prohibited practices and refers specifically to debt bondage and child servitude as institutions similar to slavery.
Forced Labour Convention, 1930
The International Labour Organisation (ILO) Forced Labour Convention requires signatories to “suppress the use of forced or compulsory labour in all its forms in the shortest period possible” [Forced Labour Convention (No. 29), 1930, adopted at Geneva, June 28, 1930, as modified by the Final Articles Revision Convention, adopted at Montreal, October 9, 1946]. In 1957, the ILO explicitly incorporated debt bondage and serfdom within its definition of forced labor [International Labour Organisation, Conventions and Recommendations 1919-1966 (Geneva: ILO, 1966), p. 891. The ILO also passed the Abolition of Forced Labour Convention (No. 105) in 1957; India, however, chose not to sign this convention].
International Covenant on Civil and Political Rights (ICCPR), 1966
Article 8 of the ICCPR prohibits slavery and the slave trade in all their forms, servitude, and forced or compulsory labor. Article 24 entitles all children to “the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State” [International Covenant on Civil and Political Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (1966) (entered into force March 23, 1976)].
International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966
Article 7 of the ICESCR provides that States Parties shall “recognize the right of everyone to the enjoyment of just and favourable conditions of work.” Article 10 requires Parties to protect “children and young persons… from economic and social exploitation” [International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200 (XXI), 21 U.N. GAOR Supp. (No. 16), U.N. Doc. A/6316 (entered into force January 3, 1976)].
Convention on the Rights of the Child, 1989
Article 32: “States 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… be harmful to the child’s health or physical, mental, spiritual, moral or social development” [Convention on the Rights of the Child, G.A. Res. 44/125, U.N. GAOR, 44th Session, Supp. No. 49, U.N. Doc. A/44/736 (1989) (entered into force September 2, 1990)]. States are directed to implement and ensure these protections.
Article 35: “States Parties shall take all appropriate. . . measures to prevent the abduction, the sale of or traffic in children for any purpose or in any form.” A significant portion of the bonded child laborers of India are trafficked from one state to another, and some are sold outright [Human Rights Watch/Asia, Rape for Profit: Trafficking of Nepali Girls and Women to India’s Brothels (Human Rights Watch: New York, 1995)].
Article 36: “States Parties shall protect the child against all other forms of exploitation prejudicial to any aspects of the child’s welfare” [Convention on the Rights of the Child, G.A. Res. 44/125, U.N. GAOR, 44th Session, Supp. No. 49, U.N. Doc. A/44/736 (1989) (entered into force September 2, 1990)].