Legal System and Elimination of Child Labour

By | May 17, 2021

In this article, the author focuses on the legal system governing the elimination of Child Labour. Further, relevant case laws and suggestions have been added. 

Children are the greatest hope to mankind and childhood, the most influential stages in human development. Unfortunately, not all are blessed with a blissful childhood. Kids who are raised in a scenario, which is helpful for their intelligent, physical and social wellbeing, grow up to be mindful and beneficial citizens.

It is accepted that children are significant for a country’s improvement due to which there are different legislations to protect them from misuse and exploitation like the UN Convention on the Right of the Child, National Policy on Child Labour, Child Labour (Prohibition and Regulation) Act etc. Nevertheless, India is one of those countries which has high child labour rates. The extreme economic hardships force the young lads to trade their childhood for filling their and their family’s tummies.

Introduction

Child labour is an everyday sight in India. Especially during the red lights, we see children begging from people to people or selling fancy items, in trains, we find plenty of children singing and dancing to fetch money.

Child labour is defined as “work that deprives children of their childhood, their potential, and their dignity, and that is harmful to physical and mental development. It refers to work that is mentally, physically, socially, or morally dangerous and harmful to children; and/or 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.”[1]

Children are compelled to forego even basic education and take up jobs that are usually risky or exploitive. Parents cannot be completely blamed for this as they prioritize their child’s life over education. It is, therefore, no big surprise that the helpless families prevalently send their children to work in the early stages of their life.

Africa has the biggest number of children working for about 72.1 million, the Arabian peninsula has about 15%, the Asia-Pacific region has 18.8% and Latin America and the Caribbean has over 5.7 million working children on average.[2]

According to the census of 2011, India has over 10.1 million children working and this has gone up in infinite numbers during the pandemic[3]. The five states in which child labour is predominantly seen are Bihar, Uttar Pradesh, Rajasthan, Maharashtra, and Madhya Pradesh. Uttar Pradesh has the most elevated number of kid child labour, about 20% of India’s absolute child labour.[4]

Causes

Despite having countless legislations at international and national levels, we find no end to child labour. The most common reasons include economic hardships, illiteracy, gender discrimination, overpopulation, human trafficking, migration etc.

According to the report of Niti Ayog on Sustainable Development Goals 2019, every member out of five in a family are below the poverty line, 25.7% population in the rural areas and 13.7% population in urban areas[5].

In this way, the poor financial conditions convert children into a monetary resource for the family as their income adds to their family’s budget. Even the International Labour Organization cite poverty as the major cause of child labour.

In M.C Mehta v. State of Tamil Nadu[6], the court observed that poverty is the fundamental explanation behind the increasing child labour and the public authorities need to support and rescue such children from hazardous labour.

Various cultural causes play a vital role as well. Looking into European history, certain social convictions have supported child labour from early ages for character and skill development[7]. This may stand true in elite homes but the street labour never helped in character formation rather made them act harsh and uncivilized.

Likewise, in numerous societies, the education of girls was less esteemed or they were just not expected to require formal tutoring, they were instead required to work on the farms or provide domestic services.

Macro-Economic studies across the globe deal with the issue of child labour in terms of supply and demand. While poverty and unavailability of educational institutions explain the child labour supply side, the growth of low paying informal economy rather than a higher-paying formal economy is amongst the causes of the demand side[8].

Bonded child labour

Bonded child labour implies the work of an individual against a credit or obligation or social commitment by the child or family. It is a form of slavery.

This form of labour runs from generation to generation and is common in India especially in the agriculture fields, brick kilns, and stone quarries, but recently it has spread to prostitution, beedi rolling, cottonseed production, synthetic gem manufacture etc.

The families are forced to pledge their children to the creditor and they are trafficked to the urban areas to work and repay the debt which unfortunately never ends due to the high interest rates charged and manipulation of accounts[9]. Boded labourers are at very high risk for abuse and neglect sometimes leading to their death.

A close analysis of this system reveals the gross caste system that still exists in India. The majority of the bonded labourers belong to the lower caste who are ‘owned’ by an upper caste.

Another issue concerning bonded labour is the lack of adequate statistical data. Though the ILO and UNICEF come up with estimates of child labour, bonded labour in specific is always neglected. In 1998 the government of India labelled bonded child labour as a marginal problem with only 3000 or so cases[10]. A survey in Tamil Nadu in 1995 found 125,000 bonded labourers in the state alone.

In 1977, India passed legislation that prohibits the use of bonded labour by anyone, including children. But prosecutors rarely use Bonded Labour System (Abolition) Act of 1976 to prosecute those responsible and bonded labour still thrive in India.

In Lakshmi Kant Pandey v. Union of India[11], to ensure the welfare of the child J. Bhagwati instructed the Government and its various agencies to follow some principles as their constitutional obligation to ensure the welfare of the child. Although judicial involvement is actively seen in child labour instances, the changing governments fail to rehabilitate them and ensure them their rights.

Consequences of child labour

A large number of child labour not only tarnishes the global image of the nation but also harms the economic system. It has a nasty effect on the adult employment ratio as child labour is cheap and adults are deprived of jobs.

In terms of the physical state of children, they are not prepared for long hours of tiring work as they become easily depleted than grown-ups. This diminishes their states of being and makes them prone to diseases and disabilities.

Children in unsafe working conditions are even in more awful condition. Also, those who work, rather than going to class, will stay uneducated which limit their capacity to add to their prosperity and get into better positions in life.

Various studies held in the rural areas reveal that families choose to have more children despite the utter poverty as they believe that more members help them earn much higher which is not true in reality. This not only increases population but also increases unemployment and reduces resources.

These children when they grow up become low wage earners and because of this, their children will likewise get constrained to work to help the family in their pay. They stall out in this endless loop and this way poverty and child labour gets passed from one generation to other.[12]

To keep an economy thriving, an indispensable standard is, to have an informed labour force outfitted with applicable skills for the necessities of the nation. Today’s child labour will reflect in the growing informal sector and unemployment in the future.

Should children work?

Although there is no definite answer to the question, it mostly depends on the social and cultural setup of the country. The International Labour Organisation (ILO) defines child labour as:

“work by children under the age of 12; work by children under the age of 15 that prevents school attendance; and work by children under the age of 18 that is hazardous to the physical or mental health of the child (BSR, 2003).”[13]

In the glamorous and industrialized western world, the definition did stir up heated debates but when it comes to Sub-Saharan and Asian countries like India where child labour occurrences are found in age groups as low as five years, the ground reality was brutal and harsh[14].

In most of the developing countries, the family members themselves oppose any legislation against child labour as they treat children to be ‘adult like’ who can earn money.

Though international conventions regulate the minimum age, working hours and conditions; it seems almost impossible to implement them in developing and underdeveloped nations as in the worst cases certain governments across the globe themselves promote child labour to save their starving population.

Also, when the government’s sole aim remains to ban child labour without alternative solutions, communities will remain in favour of child labour. The root causes have to addressed initially rather than marching to put an end to child labour which may result in millions of families starving.

Constitutional Provisions

The constitutional makers had a far-sighted view, hence various articles were incorporated for the overall development of children and prevent child labour.

  • Article 21A – Right to Education[15]

This article is referred to as the essence of the Indian Educational system. It’s the fundamental right of every child to receive free and compulsory education till the age of 14. This ensures that basic education is provided to them and no one remains illiterate.

  • Article 24 – Prohibition of employment of Children in Factories[16]

The article strictly prohibits the engagement of children below the age of fourteen years for employed in any factory or mine or any other hazardous employment.

In Peoples Union for Democratic Rights v. Union of India, it was decided that the article doesn’t just stick on to factories and mines as hazardous activities but also construction activities.

  • Article 39 – Directive Principle of State Policy[17]

The article states that the State shall, in particular, direct its policy towards securing 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.

Other Legislations

  • Child Labour (Prohibition and Regulation) Act (1986)

When we talk about this act, it can be pretty tricky as the act does not explicitly ban child labour but only prohibits the use of children in hazardous labour. Moreover, the term hazardous labour is not defined as well leading to numerous confusions.

The act seemingly has dual but contradictory goals; to prohibit child labour as well as to regulate it. It gets difficult to destroy child labour when legislation allows child labour and the target of this act has all the earmarks of being a guideline and not the eradication of child labour.

The prohibition in the laws does not apply to family workshops and the employers use this escape clause as it is difficult to prove that the child is working in a non-family unit.

  • The Minimum Wages Act, 1948

The act provides for the fixation of minimum time and wage rate for adult, adolescence, children and apprentices employed for various activities. Regardless of gender, in urban areas, a higher minimum wage reduces child labour in household work. In rural areas, a similar result applies.

However, in most cases, when the minimum wage act is not followed in organised sectors for adults it’s dystopic to expect it to be followed when employing children.

  • The Factories Act, 1948

Section 22 of the act specifies that no child below the age of 14 will be permitted to clean, grease up or change any parts of the machine which may expose them to chance of injury from any moving part both of that machine or of any neighbouring apparatus.

Section 23 of the act characterizes that no child is permitted to be employable on hazardous machines.

Section 27 of the act restricts the work of youngsters in any piece of a manufacturing plant for squeezing cotton in which a cotton-opener is busy working.

  • The Mines Act, 1952

The Act prohibits the employment of children (below 14 years of age) in a mine and restricts the employment of adolescents (between 14-18 years of age). Mining is perhaps the most perilous occupations thus the government is additionally careful and even denies the presence of children on any mine.

Although we have laws to forestall child labour, it continues to thrive in the country. This prompted the conclusion that essentially laws are insufficient and a solid check is needed. With the expanding job of media, the information on factory risks and mishappenings taking cost for innocent kids’ life kept on blazing all around in the papers.

These media coverages, called for severe enactments and rules to forbid the ill-treatment of children and child labour.

  • The Juvenile Justice (Care and Protection) of Children Act of 2000

Under this law child labour was made a crime with imprisonment as punishment. This act denies anybody from acquiring or utilizing a kid in any risky work or servitude.

As per Section 2 (14) (ii) and (ix) of Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act), a child who is found working in contravention of labour laws for the time being in force or is found begging, or living on the street and who is found vulnerable and is likely to be inducted into drug abuse or trafficking is included as a “child in need of care and protection”, among others.

Section 26 penalises the procurement of a child for hazardous employment as cognizable and bailable (Non-bailable in Delhi) offence with imprisonment up to 3 years and fine.

Other legislations that include provisions against child labour and exploitation of children are The Plantation Labour Act, 1951, The Merchant Shipping Act, 1958, The Children Act, 1960, The Apprentices Act, 1961, The Indian penal code 1860, The Apprentices Act, 1961.

The global community in cooperation with the united nations an international labour organisation has drafted numerous conventions like UN Convention On The Rights Of The Child (CRC), ILO Minimum Age Convention (No. 138), ILO Worst Forms Of Child Labor Convention (No. 182) to further enhance and provide guidelines to member countries.

Judicial responses

In Laborers Working on Salal v. the State Of Jammu And Kashmir[18] a bench of Justice P Bhagwati and R Misra ordered “that in compliance with the requirements of Article 24 of the Constitution no child below the age of 14 years should be allowed to be employed in the work of the project. It was also pointed out in the interim judgment that the Central Government should take care to see that necessary facilities for schooling 4 were provided to the children of construction workers, whenever any construction project was taken up which was likely to last for some time”.

In Bachpan Bachao Andolan v. Union of India & others,[19] a study found that children were being trafficked from Nepal or taken from their homes, misused as child workers in bazaars and circuses, and exposed to mental, physical, and sexual exploitation.

The supreme court acknowledged the issues and ordered the prohibition of the use of children in circuses, raid the same and provide rehabilitation for them.

Suggestions

To tackle the issue of child labour, extensive awareness ought to be produced among individuals particularly parents concerning the evils of child labour. There are numerous flaws in the laws made by the law-making body for the protection of children. These laws do not have an application in every sector in which children are utilized as child workers.

Moreover, harsher laws should be made which not only regulates but also abolishes child labour from all the sectors and strict actions should be taken against those who employ children for any kind of work even in family occupations.

The law enforcement body must ensure that the existing laws are effectively utilised and actions are taken if necessary.

Although the government has made primary education and free in government schools however the number of schools especially in rural India is shamefully very low and the nature of training is not satisfactory as educators often neglect them.

Helpless parents don’t send their kids to class since they feel that schooling alone cannot assist them to find jobs mostly requiring experience and skill therefore vocational training has to be enforced at its best.

Last but not least the significance of rehabilitation should also not be underestimated. Shutting down child labour may sound fancy and easy but the real success lies when the rescued children are provided with better opportunities for an enhanced future.


[1] International Labour Organisation, What is child labour, What is child labour (IPEC) (ilo.org)

[2] International Labour Organization, Regions and Countries, Regions and countries (IPEC) (ilo.org).

[3]International Labour Organization, FACT SHEET: Child labour in India FACT SHEET: Child labour in India (ilo.org)

[4] Save the Children, Statistics of Child Labor in India State Wise, Statistics of Child Labour in India State Wise | Save the Children India

[5] Gurneel Kaur, Niti Aayog Report on Hunger, Poverty, and Inequality in the Indian States a Big Concern, Available Here

[6] AIR 1997 SC 699,

[7] Dr. G.L. Parvathamma, Child Labour in India –A Conceptual and Descriptive Study, Available Here

[8] Ibid

[9] Dr. G.L. Parvathamma, Child Labour in India –A Conceptual and Descriptive Study, Available Here

[10] National Human Rights Commission, Annual Report 1999-2000, Available Here

[11] 1986 AIR 272

[12] Govind Gupta, Child Labour: Effect Of Failed Laws On The Economy, Available Here

[13] International Labour Organisation, What is child labour, Available Here

[14] Ambika Zutshi, Andrew Creed, Amrik Sohal, Child labour and supply chain: profitability or (mis)management, Available Here

[15] Article 21A, The Constitution of India.

[16] Article 24, The Constitution of India.

[17] Article 39, The Constitution of India.

[18] 1984 (1) SCALE 680

[19] W.P. (PIL) No. 139 of 2011


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