While many authorities can tolerate some traditional campaigning methods, it is usually harder to ignore the law. As part of broader campaigns, the law can be a powerful tool for achieving the changes that children need. Legal advocacy is now being used systematically in a few countries – leading to strong outcomes for children – and it has great potential for wider use.
On the 15 February 2017, a partnership of civil society organisations that have been involved in rights-based struggles for access to a quality basic education will launch a Basic Education Rights Handbook.
Changes in legislation on child labour in India have been infrequent and hard to come by. The first comprehensive legislation on child labour was formulated in British India as The Employment of Children Act, 1938 based on the report of the Royal Commission of Labour (1931). This Act prohibited child labour in certain hazardous occupations and processes and it was in force for almost fifty years even after India's Independence in 1947. The Child Labour (Prohibition and Regulation) Act, 1986 was formulated by the central government on the recommendations of Gurupadaswamy Committee report (1979) which suggested that the total elimination of child labour would not be practical as long as poverty persisted and hence the new legislation should prohibit exploitative and hazardous forms of child labour and regulate the practice in the remaining sectors of work.
Thirty years on, with the constitutional guarantee of a fundamental right to elementary education (Article 21 A) and the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act), amendments to the legislation on child labour were overdue; but there is nothing much to celebrate about the new Child Labour (Prohibition and Regulation) Amendment Act, 2016. In fact, it is a matter of grave concern that even after almost eight decades, law on child labour in India has not made any fundamental paradigmatic shift with respect to its basic aims and objectives of ''prohibition” and ''regulation” of child labour.
Over the past few years, pressure to amend legislation on child labour in order to align it with the provisions of the RTE Act have been strong. The National Commission for Protection of Child Rights had recommended revisions in child labour law and had specifically called for deletion of the word 'regulation' so that “child labour abolition becomes non-negotiable”. This amendment is firstly a delayed response, coming fifteen years after fundamental right to elementary education was recognised by the Indian Constitution and five years after RTE Act came into force. During this period, although census figures show that the number of child labourers decreased from 12,666,377 in 2001 to 4,353,247 in 2011, the accuracy of these numbers has been questioned even in the courts. Secondly, the legislation appears to be reaching out to the low hanging fruit by only making a direct yet limited reference to the provisions of the RTE Act. Thirdly, the legislation actually reduces the scope and applicability of some of the earlier provisions on prohibition of child labour and is a case of having taken one step forward and two steps back.
The following table highlights and compares the salient features of the new amendments and the old Act.
Provisions of The Child Labour (Prohibition and Regulation) Amendment Act, 2016
Provisions of The Child Labour (Prohibition and Regulation) Act, 1986
Definition of “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
Child was defined as person below 14 years of age
Recognised new category of ''adolescents” as person who has completed his fourteenth year of age but has not completed his eighteenth year
Adolescents were not covered under this legislation
Defined family as mother, father, brother, sister and father’s sister and brother and mother’s sister and brother
Family was defined as individual, the wife or husband, as the case may be, of such individual, and their children, brother, or sister of such individual
Section 3(1) states: “No child shall be employed or permitted to work in any occupation or process”
Children were prohibited from working in occupations and processes listed under the Schedule (18 occupations and 65 processes). Children could be employed in the remaining sectors of work
Exemptions: children working with family and family enterprise, artist in an audio-visual entertainment industry, including advertisement, films, television serials or any such other entertainment or sports activities. Provided it does not affect school education
Exemptions: any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from, government
Children can work in circuses before or after school hours. Working conditions and safety measures for children working in circus will be prescribed. Provided it does not affect school work
Employment of children in circus was prohibited, but given the exemption to work with families, children could be employed in family enterprises in the field of circus
Section 3A: No adolescent shall be employed or permitted to work in any of the hazardous occupations or processes set forth in the Schedule
No reference to adolescent employment. However, Factories Act, 1948 amended in 1987 regulates work done by adolescents (15-18 years) and Mines Act prohibits employment of those below 18 years
List of hazardous sectors includes: Mines.(2) Inflammable substances or explosives.(3) Hazardous process as defined under Factories Act
List of Occupations and Processes contained 18 occupations and 65 processes
Penalty for employers, parents and guardians – imprisonment (6 months to 2 years), fine Rs 20000 to Rs 50000. First offence of parents pardoned
Penalty for employers – imprisonment of 3 months to one year and fine of Rs 10000 to 20000. Penalty for parents was not specified
Offences committed by employers are made cognisable
Offences are not specified as cognisable
Child and Adolescent Labour Rehabilitation Fund constituted with rehabilitation of child and adolescent provided for
Rehabilitation of rescued child not provided for, no mention of any Fund
Compounding of offences, procedures provided
Compounding of offences, procedures not mentioned
Constitution of Technical Advisory Committee
Constitution of Child Labour Technical Advisory Committee
From the comparative table presented above, the following issues emerge:
First, unlike the 1986 legislation, the new amendments clearly prohibit children from being engaged in employment in any sector that may conflict with their right to education. This is a progressive step and in line with the RTE Act. However it is not clear what ''effect (sic) the school education of the child” means, if it implies merely school attendance or it also relates to the child's ability to spend time on school related work at home so as to progress well at school.
Second, exemptions were provided even in the earlier legislation and there are two gaps that persist in exempted sectors of work (continued from the 1986 Act):
- No specification of minimum age below which children are prohibited from working even in exempted sectors
- No prohibition of employment in hazardous occupations and processes undertaken as part of family work
The underlying assumption is that the family will protect rights and interests of its children and there is no need for the State to specify the norms to protect children from being subjected to economic exploitation and hazardous work situations within the family set up. This is alarming, given the fact that there is no clear definition of what hazardous work is, whilst the definition of family is likely to be misused. The definition of hazardous given in the Schedule pertains to the corresponding provision in the Factories Act, 1987 wherein hazard has been defined from the point of view of its implications on adult factory workers and from the point of view of environmental pollution risks. If hazard is the crucial benchmark for defining what activities adolescents can be engaged in and what they cannot be engaged in, there is a need to define what could be hazardous in the context of family work as well.
Third, although the inclusion of adolescent labour in this legislation is a welcome move, the three sectors identified in the Schedule under the 'prohibited category' were already covered under other labour legislation. It would have been useful to review the existing labour legislation and amend their respective sections related to employment of young persons because compared to other labour legislation, child labour legislation receives less attention and resources from the labour inspectorate, compromising its effective enforcement.
Fourth, it is to be welcomed that the new legislation makes offences by employers cognisable and levies stringent penalties on employers. However, the onus of proof could have been moved to the accused as in the case of the Bonded Labour (Abolition) Act, 1976, given the challenges involved in gathering evidence and the abysmal ratio of employers getting prosecuted and later convicted. Between 2010-2014, more than 973,000 inspections were conducted, resulting in 24,000 lakh prosecutions and only 6101 convictions. Furthermore, the risk of getting penalised is likely to cause parents to work alongside the employers and benefit from the loopholes in the legislation in order to jointly avoid legal action.
Fifth, while the purpose of the Rehabilitation Fund is laudable, the exact mechanism of its operation is not clear. In addition to the need for greater transparency, it will be worthwhile if the funds are spent on improving systems and services for the children and families rather than doling out cash to families, as this is not a sustainable solution.
Sixth, the implications on the education of working children need to be clearly understood. The new legislation on child labour is only concerned if the child is at school during school hours and not worried about what the child does outside school hours. In other words, the essence of the legislation is nothing more than a reiteration of the provisions of the RTE Act. Effectively, this will result in more cases of nominal registrations in schools. Currently, due to directives received from above, government school teachers are required to boost enrolments in schools. Although students are often registered with schools, they rarely attend and participate. The new amendments will not be able to break this pattern of absenteeism or nominal enrolments among students.
India has not withdrawn or made amendments to the declaration under Article 32 of the United Nations Convention on Rights of the Child made at the time of ratification despite recommendations to that effect made by the UN Committee on Rights of the Child. India is yet to ratify ILO Minimum Age Convention, 1973 (C138) and ILO Convention on Worst Forms of Child Labour, 1999 (C 182) and the claim made by the government of India that the new law on child labour will now pave the way towards ratification of these two conventions rings hollow given the lacunae in terms of protection of children from engaging in hazardous occupations. The legislation has taken only the most necessary small step forward so that it is aligned with the essence of the RTE Act, but by not specifying a minimum age of employment and by not prohibiting hazardous and exploitative forms of child labour taking place within the family, the legislation takes us two steps back, if not more.
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