ESAKKIMUTHU- ON" LABOUR & HUMAN RIGHTS ": NEED TO LOOK INTO CHILD LABOUR ACT,1986

By : purushottam Kumar on 25 June 2010 Print

“Chid is the asset of Nation”. Almost one third of the world population comprises children. Therefore, they deserve to be cared and protected to keep up and improve posterity[1]. Their protection and safeguards have been first discussed in the Geneva Declaration of the Rights of the Chid, 1924 and was recognised in the Universal Declaration of Human Rights. The united nation convention on the rights of the child by virtue of Article 1 in it defined a child as “every human being below the age of 18 years, unless under the law applicable to the child, majority is attainted earlier”. The article gives freedom to individual countries to determine whether childhood ceases at 12, 14, 16 or whatever age is found appropriate. The definition of child varies under different laws in India. Under child labour prohibition regulation act, 1986, a child is a person who has not completed age of 14 years of age.

DEFINITION OF CHILD LABOUR

The every non-school going child irrespective of whether child is engaged in wage or non-wage work, whether working in hazardous, whether employed in house or other employed on a day wage or on contract basis is a child Labour.[2] Most of child labour occurs in developing countries, mainly in agriculture but also in domestic service, factory production and backstreet workshops. Over 25% of children in sub-Saharan Africa and 18% in Asia remain trapped within the purview of poverty of which child labour is part. In other word, we can define it as all economic activity for children 12 years, any work for those aged 12-14 of sufficient hours per week to undermine their health or education, all “hazardous work” which could threaten the health of children, under 18.[3].

CAUSE OF CHILD LABOUR

Child Labour is a socio- Economic phenomenon. This phenomenon is trapped in a vicious circle of by Poverty, illiteracy, unemployment, demographic expansion, deep social prejudices and above all the government lack of interest are commonly considered as the most prominent causative factors for large- scale employment of children. It has been officially stated that “child labour is no longer a medium of economic exploitation but is necessitated by economic necessity of the parents and in many cases that of the child himself.” [4] There are several causes which has fail to check out the problem of the child labour. First, the provision of the protective labour legislation does not cover agriculture ands small scale industries. Secondly, the concerned authority , which are provided by the state governments, are unable everywhere and fail to check-up on child labour. Particularly in India, the causes of failure are : (1) poverty; (2) low wages of the adult; (3) unemployment; (4) absence of schemes for family allowance; (5) migration to urban areas; (6) large families: (7) children being cheaply available; (8) non-existence of provisions for compulsory education; (9) illiteracy and ignorance of parents; and (10) traditional attitudes.

HISTORY OF CHILD LABOUR IN INDIA

In 1985 it was the first time the issue of child labour attracted everyone in India[5]. The government appointed committee in the past to look into the question of the child labour but due to improper implementation of existing Act and lack of media coverage those committee were not so effective. One of the Bangalore Based NGO argued about the Child Labour. They said Poverty is the main cause of the child labour so attempt should be made to regulate the condition under which children work rather than to prohibit such work. Two schools of thoughts, (a) One supported the government position of regulation, (b) Prohibition of the Child Labour[6]. The child Labour Prohibition and Regulation Act came into force towards the latter half of 1986. It listed particular process in certain industry as being banned the children below the age of fourteen years with the proviso that such a ban would not apply to those children working as apart of family labour. The provision of 1986 Act were almost identical to those in Employment of children Act 1938 with reference to the ban referred. The significant difference was between the laws of 1938 and 1986 was that the latter envisaged the Technical Advisory committee which was to investigate on a continuing basis process in different industry in order to determine whether they were hazardous or otherwise[7].

IMPORTANT CONSTITUTIONAL PROVISIONS

The Indian constitution has prohibited the child Labour, and it also mention the rights of the child which has been mentioned in the article of the Indian constitution. They are:-

Article 23; Prohibition of traffic in human beings and forced labour

(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law

(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them

Article24; 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

Article 39; Certain principles of policy to be followed by the state:- The state shall, in particular, direct its policy towards securing-

(e) that the health and strength of workers, men and women, and the tender age of age children are not abused and the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength.

(f) that the 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.

Article 45;Provision for free and compulsory education for children below the age of six years-

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 until they complete the age of fourteen years

Article 21-A; 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.

LEGISLATIONS IN INDIA WHICH PROHIBIT CHILD LABOUR

There are several Acts which prohibits the child labours and they are:-

(i)Section 67of Factories Act, 1948:

Prohibition of employment of young children-No child who has not completed his fourteenth year shall be required or allowed to work in any factory.

(ii) Section 24 of Plantation Labour Act, 1951:

No child who has not completed his twelfth year shall be required or allowed to work in any plantation.

(iii) Section 109 of Merchant Shipping Act, 1951:

No person under fifteen years of age shall be engaged or carried to sea to work in any capacity in any ship, except -

(a) in a school ship, or training ship, in accordance with the prescribed conditions; or

(b) in a ship in which all persons employed are members of one family; or

(d) where such person is to be employed on nominal wages and will be in the charge of his father of other adult near male relative.

(iv) Section 45 of Mines Act, 1952:

(1) No child shall be employed in any mine, nor shall any child be allowed to be present in any part of a mine which is below ground or in any (open cast working) in which any mining operation is being carried on.

(2) After such date as the Central Government may, by notification in the Official Gazette, appoint in this behalf, no child shall be allowed to be present in any part of a mine above ground where any operation connected with or incidental to any mining operation is being carried on.

(v) Section 21 of Motor Transport Workers Act, 1961:

No child shall be required or allowed to work in any capacity in any motor transport undertaking.

(vi) Section 3 of Apprentices Act, 1961:

Qualifications for being engaged as an apprentice : A person shall not be qualified for being engaged as an apprentice to undergo apprenticeship training in any designated trade, unless he

(a) is not less than fourteen years of age, and

(b) satisfies such standards of education and physical fitness as may be prescribed:

Provided that different standards may be prescribed in relation to apprenticeship training in different designated trades and for different categories of apprentices.

(vii) Section 24 of Beedi and Cigar Workers (Conditions of Employment Act, 1966:

Prohibition of employment of children-No child shall be required or allowed to work in any industrial premises.

(vii) Child Labour (Prohibition and Regulation) Act, 1986. (Act 61 of 1986):

Sec.14 Penalties;- (1) whoever employs any child or permits any child to work in contravention of the provision of section 3 shall be punishable with imprisonment for a term which shall not less than three months but which may extend to one year or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees or with both.

(2) whoever, having been convicted of an offence under section3, commits a like offence afterwards, he shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years.

(3) whoever-

(a) fails o give notice as required by section 9

(b) fails to maintain a register as required by section 11 or makes any false entry in any such register by section 12;

(d) fails to comply with or contravenes any other provisions of this Act or the rules made there under ,

Shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both

THE DECLARATION OF THE RIGHTS OF CHILD,1959

The Rights of the children, After the Declaration of the Rights of child, 1959, local authorities and national Government to recognize children rights and strive for their observance by legislative and other measures. These rights which the General Assembly of the United Nation calls upon to be recognized and implemented by the National Governments are contained in the following Ten Principles of the Declaration,

Ø The child shall enjoy and shall be entitled to the rights without any distinction or discrimination.

Ø Special protection and facilities for proper and integrated development of human personality.

Ø The child shall be entitled from his birth to a name and nationality.

Ø Special care and protection shall provided to the child and his mother so that child can grow and develop in health.

Ø A child handicapped in any manner deserves special treatment, education and care suiting to his condition.

Ø For proper development of his personality a child shall be ensured of love, atmosphere of affection and material security.

Ø The child shall also be entitled to free and compulsory education to promote his general culture and enable him to develop his abilities on a basis of equal opportunity.

Ø The child shall in all circumstances be among the first to received protection and relief.

Ø He shall be protected against all forms of neglect, cruelty and exploitation.

Ø The child shall also be protected from practices which may foster racial, religious and any other form of discrimination.

IMPORTANT CASES RELATED TO CHILD LABOUR LAWS

There are some cases which has been considered as landmark case. Which laid down some of the important guidelines. They are:-

M.C.Mehta Vs.State of Tamil Nadu & Others[8] – In this case bench compromising of Justice Kuldip Singh, B.L. Hansaria, And S.B.Majumdar issued several direction:-

(1) Payment of compensation of Rs. 20,000 by the offender employer for every child employed in contravention of the Act.

(2) Constitution of a child Labour Rehabilitation and Welfare Fund

(3) Alternate employment to an adult member of the family in place of the child withdrawn from the hazardous occupation, or payment of Rs.5,000 for each child employed in hazardous employment by the appropriate government(either central or state) to the family of the child withdrawn from work.

(4) Provision of education in a suitable institution for the child withdrawn from work in hazardous and prohibited categories of employment. In the non-hazardous category, the court permitted children to work for 4-6 hours a day and receive education for two hours a day with a clear direction that the cost of such education should be borne by the employer of the establishment concerned.

(5) Constitution of a separate cell in the Labour Department of the appropriate government to monitor the implementation of these directions.

Bandhua Mukti Morcha Vs. Union of India and others[9] :- Honable Judges Amrendra Nath Sen, P.N. Bhagwati and R.S.Pathak:- There were 21 guildlines have been given in these case. Some of them are:-

(1) The Central Government and the Government of Haryana will ensure that minimum wage is paid to the women and/or children who look after the vessels/in which pure drinking water is kept for the workmen.

(2) There should also be the arrangement of the appropriate medical facility and First Aid Facility

(3) The medical facility should be free of cost.

COMMISSION CONSTITUTED REGARDING CHILD LABOUR

The child labour is not the new problem in India. This problem is existing even before the Independence. But, we still not able to eradicate it. There were several commission been constituted and they gave their valuable suggestion but unfortunately it couldn’t be able to implement in proper manner. They are:- The Royal Commission on Labour (1929); (ii) The Labour Investigation Committee (1944); (iii) The National Commission on Labour (1966); (iv) Gurupadaswamy Committee on Child Labour (1966); and (v) Sanat Mehta Committee (1986)

The Royal Commission on Labour 1929 has given so many guidelines regarding child labor such as Temporary Migration from rural areas due to economical scarcity. They migrate in order to have better economical status. This was the first commission which recommended about the elementary education of those children who work in the factory, as the main cause of child labor is poverty and lack of education.

M.S. Gurupadaswamy committee report 1979 emphasised that the in all future action dealing with child labour, the basic difference between the child labour and child work would have taken note of it.

MEASURES WHICH HAS BEEN TAKEN TO TACKLE WITH CHILD LABOUR

The commission which has been constituted right from beginning, came to the conclusion that the lack of education is the cause of child labour. In light of that Education Bill was passed. All have hope that the we could able to control it but unfortunately it couldn’t work. The child labour is in existence. There number has not goes down. The child (pledging) Act 1933 was the first act which has been passed in order to save the child from exploitation. Till now we have been fighting with it. Article 21-A has been inserted to have the free education. The programme such as Sarva Shiksha Abhiyaan has been launched. The child labour rehabilitating centres to save the child labour. These rehabilitant centres are too few to accommodate the huge number of working children. It’s more than a decades since the launch of the National Child Labour Project (NCLP). The main object of this policy was to rehabilitate instances of child labour. Unfortunately it also could not come with the flying colours.

WHAT SHOULD BE DONE TO TACKLE WITH THE CHILD LABOUR PROBLEM

We must take concrete steps in order to solve the problem of child labour. Our sole motto is to enhance the punishment provision which has been laid down in section 14 of the Child Labour (prohibition and regulation) Act, 1986. Section 14(1) says that whoever contravene the provision of Section 3 of this act will imprisonment not less than three months but which may extend to one year or with fine which shall not be less than ten thousands rupee but which may extend to twenty thousands rupees or with both. Where as in section 14(2) there is no any provision of fine and offcourse the imprisonment is less as well. In section 14(3) also less imprisonment and fine.

ENHANCE THE PENAL PROVISION

As the imprisonment is very less and even the fine is mere under section 14 (1). We should enhance the imprisonment and there must be enhancement of fine as well.

Section 14 (2) there must be insertion of fine provision and enhancement of imprisonment.

Section 14 (3) Here also there must be enhancement of the fine and imprisonment.

According to Section3 of this act has no purview over regulating the condition of work if children are engaged to work by family. The law has also not given attention if children are working in the agriculture.

CONSUMER SHOULD BOYCOTT THE SERVICE OF CHILD LABOUR

This is the best way to eradicate the child labour. As it is convenient to do so. People will not use or go to that place where child is doing work. It will automatically effect the producer or honour.

PROPER CHECK BY GOVERNMENT

Every state should form the Vigilance committee and which would raid the suspected places at regular interval. There must be committee at lower level such as District or Block Level. These committee would be looked after by the Central Committee.

FORMATION OF COMMITTEE

It will be better if it would be as Inter State. This committee will review the programme which has been running for child labour.

BAN ON AGRICULTURAL LABOUR OF CHILDREN

None of the Act prohibit child to do work in agricultural sector. So, the agricultural sector should also be included under the purview of the Act.

· We have the example by which we can say that enhancement of punishment really help out to tackle child labour problem. One of the our neighbour country i.e. China they have the law on child labour but due to some shocking case of working children and their exploitation they passed a new law which say that the hiring of a minor punishable by a fine of Rs. 5000 yunan per worker, cumulative over the months of employment[10] After implementing of the this law it brought some revolutionary change. Once the punishment provision will enhance people must think once before committing this offence.

· In case of consumer campaigns against the child labour there is also a positive result. In revealing of the fact that the use of child labour in sweatshops represents a major public relations disaster for both multinational companies and the host countries concerned. One country under the microscope is Uzbekistan[11]. Its economy is very dependent the cotton crop, much of which is harvested by children taken out of school. The country will almost certainly be forced to respond to the 2008 boycott of its cotton products by Wal-mart and other multinational retailers[12].

CONCLUSION

“Child is the future of Nation”. Here the question rises are we really worried about our future of nation? I think answer is in negative. We have been fighting with the problem of child Labour since 1929 but still we can’t able to think once why we are not able to eradicate it completely. It is shame for us that we are not able to eradicate it. We are playing with our future assets. Just by forming commission we couldn’t able to solve the problem. Compulsory education is one of the important methods to eradicate the child labour. But at the same time it is complex as well. In today’s scenario it is not always that the child does work due to bad economical condition but also in the greed of the monetary benefit for which their parents are to be blamed. By enhancement of imposed punishment and fine it would check the child labour. The employer would think before keeping a child labour. As the child labour is available on cheap prices so, employer gets benefit in hiring of them. The important steps should be taken by the consumers. Some years ago when media took the lead and the fact revealed that the in fire crackers factory child is doing work and people stop using crackers. That was the deterrent effect of that boycott. We must stand together to fight with it. It is our prime duty to save our national assets, Child is among one of them and one of the most priced possession. We must forget that “Today child is

Tomorrow citizen”.

Purushottam Kumar

4^th sem

Chanakya National Law University,Patna

[1] ByS.N.Mishra Labour &Industrial laws

[2] www.krepublishers.com/02Journals/J1SJS1-13-0-000-000-2006-web

[3] www.uk.oneworld.net/guides/childlabour?

[4] Suppra 2

[5] By Neera Burra,Born to Work child Labour in India Oxford University Press

[6] Suppra 5

[7] Suppra 6

[8] AIR1997SC699

[9] AIR 1984 SC 802

[10] Frontline volume 23 Number 22 November 4-17,2006

[11] Suppra3

[12] Suppra4 NEED TO LOOK INTO CHILD LABOUR ACT,1986