The Legal Analyst ISSN: 2231-5594 Volume 1, 2011, pp.

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CHILD LABOUR IN INDIA: A LEGAL APPROACH

Sukanta Sarkar* Abstract: Child labour is a serious problem across the globe with more than 250 million children working around
the world. Although poverty is one of the primary causes, there are other causes for the proliferation of child labour. It is imperative that the governments of all nations should take active measures for reduction or abolition of the same. The article discusses the pattern of child labor in India and initiatives taken by the governments of different nations to reduce child employment across the globe. Key Words: Labour, Child, India.

Introduction: The problem of child labour in the developing world has drawn considerable attention recently. Child labour is the employment of children under an age determined by law or custom. Child labour can include factory work, mining or quarrying, agriculture, helping in the parents business, having ones own small business, or doing odd jobs. However, rather than in factories and sweatshops, most child labour occurs in the informal sector, selling on the street, at work in agriculture or hidden away in houses- far from the reach of official labour inspectors and from media scrutiny. The most controversial forms of work include the military use of children as well as child prostitution. Less controversial, and often legal with some restrictions, are work as child actors and child singers, as well as agricultural work outside of the school year (seasonal work). 1 Military use of children in Sri Lanka has been an internationally recognized problem since the inception of the Sri Lankan civil war in 1983. In Sri Lanka, thousands of children are in the ranked of the Liberation Tigers of Tamil Elam (LTTE). Since signing a ceasefire agreement in 2001, the latest available UNICEF figures show that the LTTE has abducted 5,666 children until July 2006, although the organization speculates that only about a third of such cases are reported to them.2 The Article 1 of the United Nations Convention on the Rights of the Child defines a child as anyone below the age of 18. Child labour is often defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. Child labour is agonizing, stigmatizing and confusing. The highest incidence of child labour is said to be found in the poorest countries and in the poorest regions of those countries.3 According to a recent ILO estimate, there are 52 million working children in the world. Of these, approximately 29 million are from South Asia, 10 million from Africa, 9 million from East Asia and 3 million from Latin America and only one million will originate from developed countries.4 Concern has been raised about the buying publics moral complicity in buying products assembled or otherwise manufactured in developing countries with child labour. However, boycotting products manufactured through child labour may force these children to turn to more dangerous or strenuous professions due to necessity, such as prostitution or agriculture. 5 Childrens rights are human rights. Children have the right to be free from child labour and have the right to education. But rights also imply that others have duties. While states have the primary responsibility to respect, protect and fulfill these human rights, it is increasingly recognised that companies have the responsibility to respect the human rights that are enshrined in international treaties and conventions. This

*Lecturer, Faculty of Management, ICFAI Uni versity Tri pura, INDIA.

1 2

A.K. Sharma, Child Labour. First ed. (New Delhi: Anmol Publications Pvt. Ltd.) 2007, at 1 Ibid., at104 3 Sudip Chakraborty, Child Labour in Rural Context. First ed. (New Delhi: M ittal Publication2006) at 1 4 Usha Sharma, Child Labour in India. First ed. (New Delhi M ittal Publication 2006) at 207 5 Supra note 1, at 4

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was recently reinforced by UN Special Representative on business and human rights John Ruggie in his report to the Human Rights Council. 6 The Universal Declaration of Human Rights 7 states that every organ of society should contribute to ensuring that human rights are observed and implemented. This of course includes the business community. The Convention on the Rights of the Child (CRC) 8 , which has been ratified by almost all states worldwide, obliges states to 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 childs education or to be harmful to the childs health or physical, mental, spiritual, moral or social development.9 The main objectives of this paper are (a) to analyze the status of child labour in India and (b) to identify various acts of Government of India in favour of them. Child Labour in India: Child labour emerges out for the socio-economic conditions prevailing in the country. Children are often forced to work due to economic needs and social conditions. Most of these children have never been to school or have dropped out of school at some stage or the other. India continues to host the largest number of child labourers in the world today. According to the Census 2001, there were 12.7 million economically active children in the age-group of 5-14 years. The number was 11. 3 million during 1991 (Population Census) thus showing an increase in the number of child labourers. Child labour exists in many forms. Sometimes it can be easily observed; sometimes it is hidden from your view. Here is a list of different forms of child labour that includes some of the most widespread forms and some of the worst forms. However, this is not a complete list of all existing forms: 1. Domestic work 2. Agricultural work 3. Work in industries 4. Work in mines and quarries 5. Slavery and forced labour 6. Prostitution and child trafficking 7. Work in the informal economy Child labour is a significant problem in India. The prevalence of it is shown by the child work participation rates, which are higher in Indian than in other developing countries. The condition is still worse in case of children with disabilities. The major determinant of child labour is poverty. Even though children are paid less than adults, whatever income they earn is of benefit to poor families. In addition to poverty, the lack of adequate and accessible sources of credit forces poor parents to engage their children in the harsher form of child labour-bonded child labour. 10 Poverty is the major reason for child labour. At a structural level, the International Labour Organization (ILO) points to a strong correlation between income levels and child labour. Countries registering the highest rates of child labour are among the poorest. Access to education also affects the incidence of child labour. The HIV/AIDS pandemic adds a new and tragic dimension to the worst forms of child labour. With the death of one or both parents from HIV/AIDS, millions of children have been orphaned. The effective abolition of child labour is being seen as one of the most urgent challenges of our time. Certain identified causes which increase the scope of child labour are enumerated as follows: 1. Poverty: This has been identified as a primary cause that helps child labour to thrive across the globe. Although the problem mainly dominates the developing nations, where the per capita income is considerably low, even the developed world is not truly free from the same. 2. Increase in Population: Families with more number of dependent members will obviously have a low per capita income. This in turn induces child labour.
6 7

See: http://www.business-humanrights.org/Gettingstarted/UNSpecialRepresentative See: http://un.org/Overview.rights.html 8 See: http://ohchr.org/english/law/pdf/crc.pdf 9 See: Article 32.1 Convention on the Eights of the Child: http://www.unhchr.ch/html/menu3/b/k2crc.htm 10 Rajeev Kumar Sinha, Child Labour in Unorganized Sector. First ed. (New Delhi: Shree Publications & Distributions2009) at70

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3. Rapid Urbanization: This is an important factor which has induces child labour heavily. In the postglobalization era, employment opportunities are enhanced due to the dominance of private operations in almost all sections. Rapid industrialization has ushered in urbanization and this has created a huge demand for domestic and industrial manpower. 4. Rise in women employment: This is another important factor which has largely increased child labour after the globalization, liberalization policies. Consequently, there has been a huge need for domestic help which was earlier provided by women and is now substituted by children. 5. Failure of government to make primary education services accessible: This is especially applicable to rural areas where the primary education institutions are located far away and do not have facilities of better accessibility. 6. Religious and other reasons: Lack of education and awareness make rural people believe that children are gifts of God, and there is no harm in having them in large numbers.11 The hazards of child labour can be classified into three categories, namely (i) physical; (ii) cognitive; & (iii) emotional, social and moral. (i) Physical Hazards: There are jobs that are hazardous and affect child laborers immediately. They affect the overall health, coordination, strength, vision and hearing of children. (ii) Cognitive Hazards: Education helps a child to develop cognitively, emotionally and socially, and needless to say, education is often gravely reduced by child labour. Cognitive development includes literacy, numeracy and the acquisition of knowledge necessary to normal life. (iii) Emotional, Social and Moral Hazards: There are jobs that may jeopardize a childs psychology and social growth more than physical growth. Studies show that several domestic servants in India on an average work for twenty hours a day with small intervals. Moral hazards generally refer to dangers arising from illegal activities which they are forced to be engaged, such as trafficking of drugs, the sex trade, and for the production of pornographic materials. 12 Legal Mechanism: Global Perspective Childrens help lines using the name Child line have been formed in a number of countries. As of 2005 these included India, Ireland, Namibia, South Africa, Trinidad and Tobago and Zimbabwe. Some of these are independent charities; others have been set by existing childrens charities or more general help lines. 1. Minimum Age Convention, 1973: The Minimum Age Convention, 1973, is a Convention adopted in 1973 by the International Labour Organization. It requires ratifying states to pursue a national policy designed to ensure the effective abolition of child labour and to rise progressively the minimum age for admission to employment or work. 2. Minimum Age (Industry) Convention, 1919: It was established in 1919: Having decided upon the adoption of certain proposals with regard to the employment of children: minimum age of employment. 3. Minimum Age (Agriculture) Convention, 1921: It was established in 1921: Having decided upon the adoption of certain proposals with regard to the employment of children in agriculture during compulsory school hours. 4. Minimum Age (Trimmers and Stockers) Convention, 1921 (shelved): It was established in 1921: Having decided upon the adoption of certain proposals with regard to the prohibition of the employment of any person under the age of eighteen years as trimmer or stoker, 5. Minimum Age (Sea) Convention (Revised), 1936: It was established in 1936: Having decided upon the adoption of certain proposals with regard to the partial revision of the Convention fixing the minimum age for admission of children to employment at sea adopted by the Conference at its Second session.

Keka Lahiri, Child labour in the global economy in: Keka Lahiri (Ed.), Child Labour: Issues and Perspective. (Hyderabad: The Icfai University Press 2006) at 6-7 12 M .R. Sreenath and Lalitha Sreenath, Child Labour: Implications on Children and Recent Government Initiatives in: Keka Lahiri (Ed.), Child Labour: Issues and Perspective. (Hyderabad: The Icfai University Press 2006) at 21-22
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6. Minimum Age (Industry) Convention (Revised), 1937: It was established in 1937: Having decided upon the adoption of certain proposals with regard to the partial revision of the Convention fixing the minimum age for admission of children to industrial employment adopted by the Conference at its First Session 13 Namibia ratified both the ILO Minimum Age Convention (C138) and the ILO Worst Forms of Child Labour Convention (C182) in 2000. Swaziland also ratified both the ILO Minimum Age Convention (C138) and the ILO Worst Forms of Child Labour Convention (C182) in 2002. ILO has moved from its focus on Minimum Age Convention to the Worst Forms of Child Labour Convention, and states the following the term the worst forms of child labour comprises: (a) All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict; (b) The use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances; (c) The use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties; (d) 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. The UN Convention on Child Rights pr oscribes activities that are exploitative, hazardous or damaging. Article 32 states that 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 to interface with the childs education, or to be harmful to the childs or physical, mental, spiritual, moral or social development. 14 Legal Mechanism: Indian Perspective Indian Constitution is the fountainhead for has granted justice, equality and liberty. Article 21 of the Constitution is the custodian of the human rights. The important feature of Article 21 is, it gives right to life to all persons and not only citizens of India Further in regard to specific provision for children and more particularly for child labour Article 24, Article 39 (e) and (f) are available. The Articles deal specifically with the problem of child labour, Article 24 says: 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. For providing more security to child labour Indian Parliament has enacted several Acts, such as, Children Act, 1960, The Bonded Labour System (Abolition) Act, 1976, The Protection of Human Rights Act, 1993 etc.15 The most important Act to prevent child labour system is The child labour (Provision and Regulation) Act, 1986. Labour (Provision and Regulation) Act, 1986: The Act came into force from 23rd December 1986. Its main objectives are to prohibit the employment of children in certain categories of industries and to regulate the conditions of work of children in certain industries. It was amended in 1988. The Act is applicable to all establishments such as workshop, farm residential hostels, restaurants, eating house, theater or other places of public amusements where child labour is largely employed. The Act extends to the whole of India. Under this Act, a child means a person who has not completed 14 years of age.16 The Constitution of India has an elaborate provision on rights of children. There are certain articles in the constitution that specifically address the problem of child labour, and there are others that indirectly speak about protecting children from exploitative labour. Children in the Constitution of India: 1. Article 21 Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

13 14

Supra note 1, at 77-78 Ibid., at64 15 Supra note 10, at 68 16 Ibid., at 69

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2. Article 21A Right to Education: The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine. 17 3. Article 23 Prohibition of traffic in human beings and forced labour: Traffic in human beings and beggar and other forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law. 4. Article 24 Prohibition of employment of children in factories, etc.: 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. 18 5. Article 39 (e): The State shall, in particular, direct its policy towards securing 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. 6. Article 39 (f): The State shall, in particular, direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment. 7. Article 41 Right to work, to education and to public assistance in certain cases: The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want. 8. Article 45 Provision for free and compulsory education for children: 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 (below the age of six years).19 Domestic Law: A plethora of national laws, some dating to the 1930s offer safety from abuse to Indias working kids. The Bonded labour system (Abolition) Act of 1976 is for the purpose of this report the most significant and for reaching of these laws it outlaws all debt bondage including that of children, and it requires government intervention rehabilitations of the bonded worker. The Bonded labosystem (Abolition) Act, the child labour (Protection & Regulation) Act, and the other pieces of protective legislation that ally in varying circumstances to the situation of the bonded child labourer, are betrayed by an extremely low rate of enforcement. 20 Under the Indian Penal Code (IPC) rape, extortion, causing grievous hurt, assault, kidnapping, abduction, wrongful confinement, buying or disposing of people as slaves In passing the 86th Amendment to the Constitution of India, education is a fundamental right. This has implications for fulfillment of the obligation of the State to ensure that every child is in school. Supreme Court Directions on Child Labour: The Supreme Court of India, in its judgment dated 10th December, 1996 in Writ Petition (Civil) Number 465/1986, has given certain directions regarding the manner in which children working in the hazardous occupations are to be withdrawn from work and rehabilitated, and the manner in which the working conditions of children working in non-hazardous occupations are to be regulated and improved. The judgment of the Supreme Court envisaged: 1. Simultaneous action in all districts of the country; 2. Survey for identification of working children (to be completed by June 10, 1997). 3. Withdrawal of children working in hazardous industries, and ensuring their education in appropriate institutions; 4. Contribution of Rs. 20,000 per child to be paid by the offending employers of children to a welfare fund to be established for this purpose; 5. Employment to one adult member of the family of the child so withdrawn from work, and if that is not possible a contribution of Rs. 5000 to be welfare fund to be made by the State Government;
17 18

Ibid., at72 Ibid., at73 19 Ibid. 20 Ibid., at81

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6. Financial assistance to the families of the children so withdrawn to be paid out of the interest earnings on the corpus of Rs. 20,000/25,000 depos ited in the welfare fund as long as the child is actually send to the schools; 7. Regulating hours of work for children working in non-hazardous occupations so that their working hours do not exceed six hours per day and education for at least two hours is ensured. The entire expenditure on education is to be borne by the concerned employer; 8. Planning and preparedness on the part of Central and State Governments in terms of strengthening of the existing administrative/ regulatory/enforcement frame-work (covering cost of additional manpower, training, mobility, computerization etc.) implying additional requirement of funds. As a follow up of the directions of the Supreme Court, all the State Governments were send detailed guidelines on December 26, 1996 indicating the manner in which the directions of the Supreme Court were to be implemented. 21 Concluding Observation: Child labour is a significant problem in India. The Constitution of India clearly states that child labour is wrong and measures should be taken to end it. The government of India has implemented the Child Labour Act in 1986 that outlaws child labour in certain areas and sets the minimum age of employment of fourteen. Measures to eradicate child labour have been taken both on international and domestic levels and there is a greater role for international labour organization to play. Although there are various acts are present but all of them are not applied correctly and therefore child labour are also prevails in society. Suggestions: The National policy on child labour to be reviewed urgently with respect to the banning child labour. A comparative analysis of child labour and their status in organized sectors may also be taken into consideration for evaluating status of child labour in unorganized sectors. An extensive macro level research is required to find out realistic figure regarding number of children in unorganized sectors. Poverty reduction programs should be promoted in those segments of the population which exhibits high proportion of child labour. Government should collaborate more with the media and voluntary organizations to enhance awareness and create a strong public opinion against child labour through massive campaigns. 22

21 22

Supra note 10, at 78-79 Ibid., at 107-08