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Child Labour Law Amendment

Applying the Brakes on Social Mobility

The proposed amendment to the Child Labour (Prohibition and Regulation) Act 1986 hopes to align it with the Right to Education Act, 2009. It prohibits child labour up to 14 years and regulates the employment of children between the ages of 15 and 18 years. But the proviso that children can help in the family occupation after school hours or in the fields, home-based work, forest produce gathering or attend technical institutions during vacations, is bound to be misused. Besides, it will also lead to reinforcing the practice of caste-based occupations.

The views expressed here are personal and not necessarily that of the organisation.

According to the 2011 Census, the total number of child labour up to 18 years of age in India, including main and marginal workers, is as high as 23.8 million. Of this, 10.1 million are children in the age group of 5 to 14, while 13.7 million are children in the age group of 15–17 years. Children up to 18 years constitute 5% of the total workforce, with those up to 14 years being 2.1% and children between 15 and 18 years amounting to 2.83% (Table 1, p 17). The actual figures would be still higher as migrant children and children of migrant families are unlikely to be included in full measure in the census.

The participation rate of female children in the total female workforce is higher at 6.29% as compared to that of male children within the male workforce, which stands at a relatively lower 4.32%. This trend is seen both in rural as well as urban areas, demonstrating a gender bias against girls though a substantial percentage of boys are also engaged in labour (Table 2, p 17). It is clear that a higher proportion of girls among the female workforce are put to work as child labour as compared to boys.

Among the occupational classifications in which age-wise employment data of children is grouped in the census, agricultural labour emerges as the largest category. In the 5 to 14 years age group, agricultural labourers constitute 3.34 million, that is, 33% of the total child workforce; while in the broader 5 to 17 category their number swells to 8.97 million and as high as 38%. In urban areas, other workers, that is, children belonging to occupations other than agriculture and household industry amount to 1.69 million out of 2.03 million child labourers signifying a very high proportion of 83% in urban areas. In the 5 to 17 years age group other workers account for 3.74 million and 82% of the child workforce. A large section of child labour classified as “cultivators” in the census would belong to the poor and marginal peasant families who cultivate either their own land or land leased from others (Table 3, p 17).

To recapitulate, the main trends in child labour, agricultural labour stands out as the occupation in which the largest number of children is involved, though in urban areas the “other workers” category is the counterpart. Along with this a very high girl child participation in work is also emerging. It needs to be noted that this is apart from the unpaid care work of girls, which is not captured in these census categories. It is rather surprising that the category of household industry workers report very low numbers compared to both agricultural labour and other workers (Table 3). To put these figures in perspective: children belonging to poor and marginal peasants as well as landless households who form part of the excluded social groups are the ones who are mainly exploited as child labour. A large section of children are already working as cultivators in family-owned or leased farms.

Right to Childhood

The United Nations Convention on the Rights of the Child (UNCRC 1989), of which India is a signatory, defines a child as a person below the age of 18 years and prohibits children from being employed as labourers, though India has not ratified Article 32, which deals with employment of children. Following the international norm, the National Policy for Children 2013 (GoI, MWCD 2013) adopted by the Government of India also defines children as persons below the age of 18 years. In line with this policy, the UNCRC, and the Juvenile Justice Act 2000 (GoI, MWCD 2013), which also define the child as being a person up to 18 years, the government should prepare a road map to prohibit employment of children up to 18 years in any form of labour.

The Right of Children to Free and Compulsory Education Act 2009, (RtE) (Gazette of India 2009) which came into force from 1 April 2010, guarantees education to children between 6 and 14 years. This act emerges from a constitutional commitment arising from the 86th Constitutional Amendment (2002), which enshrines education as a fundamental right justiciable under the Constitution. However, even the enrolment of all out-of-school children, mostly working as child labour will not be possible unless child labour at least up to 14 years is outlawed completely and the law implemented effectively.

Proposed Amendment

The Child Labour (Prohibition and Regulation) Act (CLPRA) 1986 is being amended with the objective of aligning it with the RtE, by proposing to prohibit child labour up to and including 14 years and regulating employment of children between 15 and 18 years. The proposed amendment is also aimed at conforming to the International Labour Organization (ILO) Convention 138 on minimum age of entry into employment, which is specified as not less than 15 years and with ILO Convention 182 on the worst forms of child labour (ILO 1973; GoI, ML&E 2015).

However, the amendment is being introduced by the government with an important rider; which is likely to be misused by employers of children. The union cabinet’s decision to approve the draft of the CLPRA Amendment Bill with a proviso to allow child labour below the age of 14 years in family enterprises, including agriculture, home-based work, artisanship (GoI, ML&E 2015) will lead to the dilution of the objective of the bill to ban child labour up to 14 years of age.

Ignoring Recommendations

In this regard, it needs to be pointed out that the Ministry of Labour and Employment and the union government have ignored the recommendations of the Parliamentary Standing Committee on Labour (PSCL 2013–14) made in its 40th report in December 2013. Responding to Section 5 of the CLPRA Amendment Bill 2012, which had provided that the child can help his/her family after school hours or help in fields, home-based work, forest gathering or attend technical institutions during vacations, the parliamentary committee expressed its amazement and said that it was not able to understand as to how the Labour Ministry proposed to keep a check on children working in their homes. It pointed out that the ministry was providing loopholes with this proviso since it would be very difficult to make out whether children were merely helping their parents or working to supplement the family income.

It went further and stated that allowing children to work after school was detrimental to their health as rest and recreation was important for the fullest physical and mental development in the formative years besides adversely affecting their studies. The committee felt that the schools where these children studied should conduct sessions for their parents and tell them about the needs of children. It was of the view that “there was no need to insert a provision to expressly allow some obvious things, in the Indian context, such as children helping their parents in domestic chores” (PSCL 2013–14).

As mentioned in the parliamentary committee’s report there is no need to insert an explicit section or clause to permit children to help with their families’ work. It is likely to lead to misuse with employers insisting that the children working as labourers belong to their (the employers’) families and will defeat the purpose of the proposed amendment. It needs to be pointed out that according to Article 31 of the UNCRC, children have a right to “rest and leisure, to engage in play and recreational activities appropriate to the age of the child and to participate freely in cultural life and the arts” (UNCRC 1989).

The logic that working in family enterprises at an early age helps children to learn skills early in their life runs against the process of social mobility through education to occupations outside the traditional ones. This is a normal process in any modernising society. The move to give written legal sanction in the form of the proposed amendment, in order to facilitate the employment of children in family occupations will lead to reinforcing adherence to caste based occupations.

Emphasising the need to provide a choice in occupation, beyond the caste ordained ones, B R Ambedkar had observed:

Social and individual efficiency requires us to develop the capacity of an individual to the point of competency to choose and to make his own career. This principle is violated in the Caste System in so far as it involves an attempt to appoint tasks to individuals in advance...(Ambedkar 2011).

He also argues for the need to choose one’s occupation in different times in order to make a livelihood. He says:

Industry is never static. It undergoes rapid and abrupt changes. With such changes an individual must be free to change his occupation. Without such freedom... it would be impossible for him to gain his livelihood (Ambedkar 2011).

It is clear therefore, that both from the perspective of individual choice in occupations and to adjust to the livelihood needs arising from technological changes it is imperative that children are provided the fullest opportunity to choose their occupation, rather than training them in their parents’ occupations during non-school hours and vacations.

The bogey that parents would be penalised does not hold because the second part of Section 5 of the proposed amendment clearly mentions that labour involving a “subordinate relationship” is prohibited. As labour in a family does not involve a subordinate relationship, the first part of Section 5, which expands the scope of family-based children’s work from “workshops” in the principal 1986 Act (GoI 1986) to specifically “fields, home-based work, forest gathering and attending technical institutions” as in the CLPRA amendment bill 2012 or “agriculture and artisanship” as stated in the present amendment (GoI, ML&E 2015) is not really required. Retaining this clause will amount to employing children under the guise of family labour by employers, particularly in agriculture which has emerged as the largest category of child labour in our analysis of census data, in forest produce collection and also in the household industry. Seen against the context of the labour law amendment to exempt factories employing less than 40 employees from the purview of monitoring and regulation under an array of labour laws it appears that these factories would be deemed as family enterprises, which will open the doors to employing child labour using the approval for child labour in family enterprises (Live Mint 2015).

Other Key Features

The government has been drawing attention to the clause in the amendment that provides for compensation from the employer and the government, for the rehabilitation of each rescued child labourer. The amendment also proposes increase in the minimum term of imprisonment for employing child labour from three months to six months and the maximum term from one year to two years. While these are welcome steps, it is necessary to enhance the low prosecutions and convictions that are made under CLPRA.

The 40th report of the parliamentary committee responding to the 2012 amendment bill had pointed out that the bill did not fully identify hazardous occupations and processes prohibited for employing adolescents and recommends including them in the amendment bill. The Schedule under Section 3A to be inserted into the original CLPRA 1986 as per Section 6 of the 2012 bill mentioned only mines, inflammable substances and hazardous processes as per the Factories Act 1948 as being hazardous for children. Only minor additions have been made to this list in the present amendment. We are of the view that a detailed list of hazardous occupations and processes initially to be based on the present list of such occupations and processes under the principal act of 1986, should be mentioned in the amendment bill itself as an annexure. This list should however be reviewed and updated based on its applicability to children as the Factories Act 1948 concerns adults and also keeping in mind newly emerging occupations on account of urbanisation and technological changes such as handling of e-waste. The implementation mechanism regarding the existing list of hazardous occupations needs to be tightened as children are employed with total impunity in several of the prohibited occupations and processes quite openly. The most obvious example of this is urban waste handling and sanitation, despite both rag picking and scavenging being included in the prohibited list (GoI 1986).

The proposed amendment also permits employing children in the audiovisual, entertainment and advertising industries. Children are being used in a range of such occupations from street circuses to films and live shows. They are also subjected to hazardous as well as traumatic situations in these industries in order to enhance the thrill and suspense of such shows. However, this arena needs to be strongly regulated keeping in view the rural/mofussil as well as the urban settings and also the hi-tech and low-tech industries.

Recommendations

As the government is committed, according to the national policy on children, to consider persons aged less than 18 years as children, it is expected that it will draw up a road map towards a complete ban on child labour (up to 18 years). However, for the present, based on the above discussion we make a few recommendations which are in line with the objective of the proposed amendment to ban child labour up to 14 years and regulate the employment of children between 15 and 18 years.

(1) Amend Section 5 of the CLPRA Amendment Bill 2012 which legalises use of child labour in family-based enterprises as it will be misused by employers of such enterprises under the guise that the children belong to their families.

(2) Formulate regulatory laws governing employment of children between 5 and 14 years and 15 and 18 years in the entertainment, audiovisual and advertising industries, with particular emphasis on prohibiting their employment in hazardous tasks and traumatic situations.

(3) Reinstate the original longer list of hazardous occupations with regard to the children between 15 and 18 years and update the list with occupations and processes, which are hazardous, based on an assessment of the newly emerging occupations on account of urbanisation and technological changes.

References

Ambedkar, B R (2011): Annihilation of Caste, Pradeep Gaikwad, Nagpur: Samata Prakashan, Reprint (Based on the third edition, 1944)

Government of India (1986): “The Child Labour (Prohibition and Regulation) Act,” http://clc.gov.in/Acts/shtm/chla.php, viewed on 12 August 2015.

— (2013): Ministry of Women and Child Development (MWCD): National Policy for Children 2013, p 2, http://wcd.nic.in/icpsmon/pdf/ npc2013d td29042013.pdf, viewed on 12 August 2015.

Government of India, Ministry of Labour and Employment (ML&E) (2015): Press Release 13 May, “Approval to Move Official Amendment to CLPRA Amendment Bill 2012,” http:// 164.100.47.134/lsscommittee/Labour/15_Labour_40.pdf, viewed on 12 August.

International Labour Organisation (1973): C-138, Minimum age Convention 1973, (No138) http: //www.ilo.org/dyn/normlex/en/f?p= NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C138, , viewed on 12 August 2015.

Live Mint (2015): “Government Plans Big Labour Reform Push in Monsoon Session of Parliament,” 8 July, http://www.livemint.com/Politics /7iDANGIDKz 9pDj6cO4TJEL/Govt-plans-big-labour-reform-push-in-monsoon-session-of-Parl.html, viewed on 12 August.

The Gazette of India (2000): Act No 56, Juvenile Justice (Protection and Care of Children) Act 2000, http://khoyapaya.gov.in/ mpp/resources/Juvenile%20Justice%20Act%202000.pdf, viewed on 12 August 2015.

— (2009): No 39, Right of Children to Free and Compulsory Education Act, http://ssa.nic.in/rte-docs/free%20and%20compulsory.pdf, viewed on 12 August 2015.

Parliamentary Standing Committee on Labour on Child Labour Prohibition and Regulation Act Amendment Bill 2012 (PSCL) (2013–14): 40th Report, pp 38–39 http://164.100.47.134/lsscommittee/Labour/15_Labour_40.pdf, viewed on 12 August 2015.

United Nations Convention on the Rights of the Child (UNCRC) (1989): pp 2 and 9, http://www.ohchr.org/Documents/ProfessionalInterest/crc.pdf

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