Critical Analysis on Prevailing Legislation on Child Labour

  • Ayswariya Sanker
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  • Ayswariya Sanker

    Student at Reva University, India

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Abstract

Children are future citizens of the Nation and their adequate development is utmost priority of the country. Unfortunately, child labour engulfs children across the world. This article is mainly about the prevailing legislation on child labour and the steps that has been taken by the government which includes various programmes, to eradicate this situation of child labour. And also this article discusses about the core reason for child labour which in fact is poverty. Poverty and child labour are mutually reinforcing: because their parents are poor, children must work and not attend school, and then grow up poor. Child labour is widespread, and bad for development, both that of the individual child, and of the society and economy in which she, or he lives. If allowed to persist to the current extent, child labour will prevent the achievement of the Millennium Development Goals of halving poverty, and achieving Education for All. Nearly all of the world's governments have ratified international human rights conventions, which call for the elimination of child labour, and the provision of universal primary education. Fulfilling these commitments is of critical importance for development. The policy curbing child labour exists but lack of enforcement of labour restrictions perpetuates child labour. This is manifested in variation in minimum age restriction in different types of employment. The International Labour Office reports that children work the longest hours and are the worst paid of all labourers.

Type

Research Paper

Information

International Journal of Law Management and Humanities, Volume 4, Issue 3, Page 198 - 204

DOI: https://doij.org/10.10000/IJLMH.11435

Creative Commons

This is an Open Access article, distributed under the terms of the Creative Commons Attribution -NonCommercial 4.0 International (CC BY-NC 4.0) (https://creativecommons.org/licenses/by-nc/4.0/), which permits remixing, adapting, and building upon the work for non-commercial use, provided the original work is properly cited.

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Copyright © IJLMH 2021

I. Introduction

The term ‘child labour’, suggests ILO[2], is best defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development. Interferes with their schooling by depriving them of the opportunity to attend school; obliging them to leave school prematurely; or requiring them to attempt to combine school attendance with excessively long and heavy work.

India’s Census 2001 office, defines[3] child labour as participation of a child less than 17 years of age in any economically productive activity with or without compensation, wages or profit. Such participation could be physical or mental or both. This work includes part-time help or unpaid work on the farm, family enterprise or in any other economic activity such as cultivation and milk production for sale or domestic consumption. Indian government classifies child labourers into two groups: Main workers are those who work 6 months or more per year. And marginal child workers are those who work at any time during the year but less than 6 months in a year. Some child rights activists argue that child labour must include every child who is not in school because he or she is a hidden child worker.

After the independence from colonial rule, India has passed a number of constitutional protections and laws on child labour. The Constitution of India in the Fundamental Rights and the Directive Principles of State Policy prohibits child labour below the age of 14 years in any factory or mine or castle or engaged in any other hazardous employment (Article 24)[4]. The constitution also envisioned that India shall, by 1960, provide infrastructure and resources for free and compulsory education to all children of the age six to 14 years. (Article 21-A and Article 45)[5].

Despite the fact that there are a few laws and guidelines with respect to youngster work, over the previous years the public authority has kept a firm stands over this issue. At first there were a few articles which covered risky type of work and expressed the base period of work as 14 years for such exercises. The industrial facility Act of 1948 expanded the base period of work to 18 years for the above said exercises and cycles. After the  child labour  law of 1986 the degree was augmented from perilous work to a few non dangerous cycle also which included 14 enterprises and 52 cycles. Yet at the same time there are many dismissed territories also such zones incorporate Agriculture area, Domestic area and non SNA exercises. The greatest frequency of youngster work is in horticulture area which is officially treated as work of light natured and innocuous for the improvement of children. 69% of the general occurrence of youngster work is predominant in this area which keeps them out of tutoring framework. The second biggest business of employer of child labour is the home-grown or casual economy. There are numerous kids who are locked in as home-grown workers and are fundamentally adding to the casual economy. Next to the Bonded Labour Act there is no law dealing with such children.

II. Constitutional provisions provided to the indian children

The Indian Constitution came into force on 26th January 1950. The constitution made certain special provisions to children of our country in the fundamental rights (Part – III of the constitution), in the directive principles of State Policy (Part – IV of the constitution) and also in the fundamental duties.

(A) Fundamental Rights

Article 14 says the State shall not deny to any person equality before the law or the equal protection of laws within the territory of India. Article 15 says the State shall not discriminate against any citizen on the grounds of religion, race, caste, sex, etc. But Article 15 (3) lays down that “Nothing in this article shall prevent the State from making any special provisions for women and children.” Article 21 says no person shall be deprived of his life or personal liberty except according to the procedure established by law. Article 23 says traffic in human beings and begar and other forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.[6]Article 24 says 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.

(B) Directive Principles of State Policy

The Directive Principles of State Policy focus on various issues concerning child labour. Article 39 says “Right of children and the young to be protected against exploitation and to opportunities for healthy development, consonant with freedom and dignity.” Especially, Articles 39 (e) and (f) laid down that the State shall direct its policy in such a manner that the tender age of children is not abused and children are given opportunities and facilities to develop in a healthy manner and childhood is protected against exploitation and moral and material abandonment. Article 39(e) says lays down168 “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”. Article 39(f) 169 says of the constitution makes it obligatory on the part of the state to direct its policy towards securing “that children are given opportunities and facilitates 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 42 says Right to humane conditions of work and maternity relief. Article 45 says Right of children to free and compulsory education, till the age of 14. This directive has been enshrined as a fundamental right of the children through the Ninetythird Amendment to the Constitution. Article 46 says to promote educational and economic interests of weaker sections to protect them from social injustice. Article 47 say the State shall endeavour to raise the level of nutrition and standard of living and to improve the public health.[7]

(C) Fundamental Duties

The fundamental duties which were incorporated in the Indian constitution state that “who ever is a parent or guardian has to provide opportunities for education of his ward or to his child or as the case may be, between the age of six and fourteen years.[8]

III. Programmes initiated by the government to eradicate child labour

(A) International Programme for Elimination of Child Labour (IPEC)

IPEC is a global program launched by ILO in December 1991. India was the first country to join it in 1992, when it signed a memorandum of understanding with ILO. IPEC-India has during the period 1992-2002, supported over 165 action programme. The government of India and the U.S department of labour have also initiated a US$ 40 million project aimed at eliminating child labour in 10 hazardous sectors across 21 districts in five states namely Maharashtra, Madhya Pradesh, Tamil Nadu, Uttar Pradesh, and NCT of Delhi. This project popularly known as INDUS is being implemented by ILO. An estimated 80,000 children will be withdrawn and rehabilitated through this project.

By Dec 2005, it was operational in 86 countries. IPEC is the largest programme of its kind globally and the biggest single operational programme of the ILO. The number and the range of IPEC’s partners has also expanded over the years and now includes other international, government agencies, employers, NGO’s etc. Their aim is progressively to eliminate child labour through education, social mobilization, awareness raising and legal enforcement.[9]

(B) National Child Labor Programme (NCLP)

NCLP was established in 1988 with the aim to rehabilitate child labourers by providing them

with non formal education and bridge course to facilitate their transition to formal schooling system. After 19 years, the government has been able to only reach less than half districts in the country. The NCLP has successfully been able to main stream a mere 308,000 child labourers in to the formal education system after almost two decades.[10]

(C) The Oxford Poverty and Human Development Initiative (OPHI)

The OPHI recently released its report on poverty levels across the world. The report uses the Global Multidimensional Poverty Index that takes into account deprivations in health, education and living standards. Thus, according to this index, a poor person is called “multidimensionally poor”. Its findings based on data from across 103 low- and middle-income countries suggest that children represent 48 per cent of the multidimensional poor in the world. And half of India’s children are multidimensionally poor.

We tend to study poverty figures in general terms. There is not much focus on child poverty even though various global development goals revolve around the welfare and well-being of children. Worryingly, children account for just 34 per cent of the 103 countries’ total population. It means children are poorer than adults. Expectedly, a significant percentage of the poor children are in South Asia and Africa. The younger a child, the deeper is the level of poverty. According to this report, children up to nine years of age are the poorest.

For a country that gives an impression of talking less and less about poverty despite hosting the largest number of poor in the world, this report should be an urgent call for action. This is because the assessment is not a usual “income poverty assessment. It takes into account 10 indicators that define a healthy child like access to health, education and living standards comprising nutrition and sanitation. A child is termed multidimensional poor if she/he is deprived in one-third or more of the indicators. Thus, this poverty assessment makes a statement on the basic human development situation that children are exposed to. Half of our children being poor under this assessment mean they are not able to access basic human development needs.

Ideally, this assessment shows that all the government programmes targeted at children are failing to show the desired results. In India, a child is protected with various development programmes from conception to adulthood. Most of these programmes aim to lessen malnutrition and protect food security for children. Why have we failed then? There is no state-level disaggregation of the data in the ophi study. But if one goes by the geography of poverty in India, most of these children will be found in states like Jharkhand, Orissa, Madhya Pradesh and Chhattisgarh. And in all likelihood, they will be from marginalised Scheduled Caste and Tribe groups.

These are the states rich in natural resources like forests and water. Some years ago, the Chronic Poverty Research Centre brought out a series of research publications on why some areas in the country remain poor despite years of targeted development activities. These reports clearly showed that access to and use of local natural resources critically decides whether a person would be poor or move out of the trap in future. One research paper convincingly argued that people who live near forests are prone to be chronically poor. It also said that the chronically poor have a “high probability” of transmitting their poverty to the next generation. Are today’s poor children the next generation mentioned in the study?

If yes, it calls for a massive change in the design of development programmes. Our programmes for children are ad hoc in approach; they don’t treat the causes of poverty. Instead, they just focus on arranging a few facilities that treat deprivations in short term. So, a child gets nutrition supplements but will not get access to the wholesome food s/he once used to access from the forest. For this problem to be fixed, the government has to change forest laws, the mechanism of the public distribution system and also the approach to poverty as a national challenge.[11]

IV. Poverty: the main cause of child labour

India is a developing nation. Although its economy is growing, poverty is still a major challenge. However, poverty is on the decline in India. It has around 86 million people living in extreme poverty which makes up ~6% of its total population as of May 2021[12]. In May 2012, the World Bank reviewed and proposed revisions to their poverty calculation methodology and purchasing power parity basis for measuring poverty worldwide[13]. It was a minimal 3.6% in terms of percentage. As of 2020, the incidence of multidimensional poverty has significantly reduced from 54.7 percent in 2005 to 27.9 percent in 2015-16.

According to the World Bank, India accounted for the world’s largest number of poor people in 2012 using revised methodology to measure poverty, reflecting its massive population. However, in terms of percentage, it scored somewhat lower than other countries holding large poor populations. In July 2018, World Poverty Clock, a Vienna-based think tank, reported that a minimal 5.3% or 70.6 million Indians lived in extreme poverty compared to 44% or 87 million Nigerians. In 2019, Nigeria and Congo surpassed India in terms of total population earning below $1.9 a day. Although India is expected to meet the United Nations’ Sustainable Development Goals on extreme poverty in due time, a very large share of its population lives on less than $3.2 a day, putting India’s economy safely into the category of lower middle income economies.[14]

V. Conclusion

Although there are several laws and regulations regarding child labour, over the past years the government has maintained a firm stands over this problem. Initially there were several articles which covered hazardous form of work and stated the minimum age of employment as 14 years for such activities. The factory Act of 1948 increased the minimum age of employment to 18 years for the above said activities and processes. After the child labour law of 1986 the scope was widened from hazardous work to several non hazardous process as well which included 14 industries and 52 processes. But still there are many neglected areas as well such areas include Agriculture sector, Domestic sector and non SNA activities. The maximum incidence of child labour is in agriculture sector which is formally treated as work of light natured and harmless for the development of children. 69% of the overall incidence of child labour is prevalent in this sector which keeps them out of schooling system. The second largest employer of child labour is the domestic or informal economy. There are many children who are engaged as domestic labourers and are significantly contributing to the informal eco my. Beside the Bonded Labour Act there is no law taking care of such children.

Initially, we had several articles which made primary education compulsory up to the age of 14 and supported to give a basic minimum environment to all children by the year1960. But unfortunately even by the year 2009, the government has been quite unsuccessful in fulfilling the above said norms. Still we have 20,549,000 Children out of schooling system and there are many more that are unable to get a square meal per day as against the basic minimum environment which was granted by the legislation.

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[1] Author is a student at Reva University, India.

[2] “What is child labour?” International Labour Organization. 2012

[3] “Figures: An Analysis of Census 2001 Child Labour Facts and Figures” (PDF). Govt of India and ILO. 2007

[4] “National Legislation and Policies against Child in India”. International Labour Organization – an Agency of the United Nations, Geneva. 2011. Archived from the originalon 9 August 2012. Retrieved 13 July 2012.

[5] “Constitution of India”. Ministry of Law and Justice, Govt. of India. Archived from the original on 25 March 2016. Retrieved 13 July 2012.

[6] Kulshreshtha, J.C: “child labour in India”. Asish publishing house, New Delhi (1978), p.18.

[7] Kulshreshtha, J.C: “child labour in India”. Asish publishing house, New Delhi (1978), p.19.

[8] Kulshreshtha, J.C: “child labour in India”. Asish publishing house, New Delhi (1978), p.18.

[9] International Programme for Elimination of Child Labour (IPEC) 1992,ILO

[10] National Child Labour Programme (NCLP),1988

[11]  “Oxford Poverty & Human Development Initiative”. Oxford Poverty & Human Development Initiative. Retrieved 2010-08-04. The Oxford Poverty and Human Development Initiative (OPHI) is an economic research centre within the Oxford Department of International Development at the University of Oxford. Established in 2007, the centre is led by Sabina Alkire.

[12] https://worldpoverty.io/map

[13]  “World Poverty Clock”. worldpoverty.io.

[14] “India is home to world’s largest poor population”. Hindustan Times. 5 October 2015.

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