Child Labour, Law and GroundReality in India

JAI SHANKAR AGARWALA __________________________________

Reason and justice tell me there's more love forhumanity in electricity and steam than in chastity and vegetarianism.--Anton Chekhov

Child labour is bad, child beggary is worse; childdelinquency is the worst form of child abuse in anysociety. If we choose a view-point at the top floorof Bruj Khalifa1 and capture a bird’s eye view of theground below, we are sure to get a fascinatinglandscape but be also equally sure to miss the uglymicro realities hidden within. Such is the classdisconnect in the present era that pure objectivityis hard to find even among those whose intellectualhonesty is considered above board universally.

Charlie Chaplin, the greatest cinematic genius of20th century, writes in his autobiography, to use hisown words, “I had been news vendor, printer,toymaker, glassblower, doctor’s boy etc” in hischildhood in Victorian England in which “wealth andpoverty were extreme, and poorer class-women hadlittle choice but to do menial work or to be drudgesof sweetshops.” 2 Wealth and poverty disparity todayis far worse in this era of 21st Century than possibly

was in the Victorian England of 19th Century. Yet, weshout at the top our voice from our rooftops tocompletely eradicate child-labour without everaddressing its primary root-cause, that is, poverty !In The kid, one of the greatest films in cinematichistory, an orphaned baby (Coogan) whom a Tramp(Chaplin) adopts, when grows up as a five year old,becomes the tramp’s partner in a minor crime,throwing stones to break windows that the Trampworking as a glazier can then find to repair! Whatshould the State do? Put the child in juvenile homeand the Tramp in gaol for say, seven years, forcheating the public?

I cannot help mentioning here my recent personalencounter with a family of a disabled man thatapproached me for legal help as they were threatenedwith dispossession of the only ‘home’ they had by hisbrother-in-law on the strength of a Will purportedlymade by the late mother. The man, without a limb,earned Rs 1000/- per month working as a watchman fora shop, wife earned around Rs 3000/-p.m. working as adomestic help in a couple of houses and their threechildren worked at home assembling an electricalgadget @ Rs.10/- for hundred pieces. In this way thechildren earned around Rs 100/- everyday on anaverage. They lived in an 8X8 room with bed, toilet,bath, kitchen all rolled into one within that space!I could scarce believe the living conditions unless Ihad seen it myself by visiting the family! Located inthe heart of old Delhi, what else could the childrenof the family do? Was the income of the family

sufficient to feed the five heads in the city ofDelhi? One civil or criminal litigation or a singlemedical problem in such a precarious economicsituation is enough to condemn the family in apermanent poverty-trap through high interest bearingprivate loans. Yet, as per the benchmark set by theGovt. of India, the family must be deemed to be abovepoverty-line!3

Article 24 of the Constitution of India prohibitsemployment of children below the age of 14 years inany factory or mine or engaged in any other hazardousemployment. So, factories started outsourcing childlabour in the way described as aforesaid. Section 3of the Child Labour (Prohibition and Regulation) Act,1986 prohibited employment of children in occupationsset forth in part–A of the Schedule annexed. TheAmendment bill No. LXII of 2012 substitutes Section 3of the principal Act in the following manner:

“3. No child shall be employed or permitted to workin any occupation or process:

Provided that nothing in this section shall applywhere the child helps his family after school hoursor helps his family in fields, home-based work,forest gathering or attends technical institutionsduring vacations for the purpose of learning, butdoes not include any help or attending any technicalinstitutions where there is subordinate relationshipof labour or work which are outsourced and carriedout in home.”4

The Amendment Act defines an ‘adolescent’ as onewho has completed his fourteenth year of age but hasnot completed his eighteenth year; a ‘child’ as onewho has not completed his fourteenth year of age orsuch age as may be specified in the Right to Childrento Free and Compulsory Education Act, 2009, whicheveris more.

The penal provision under section 14 of theprincipal Act stands amended as follows;

(1) Whoever employs any child or permits any child towork in contravention of the provisions of section 3shall be punishable with imprisonment for a termwhich shall not be less than six months but which mayextend to two years or with fine which shall not beless than twenty thousand rupees but which may extendto fifty thousand rupees, or with both:

Provided that the parents or guardians of suchchildren shall not be punished unless they permitsuch child for commercial purposes in contraventionof the provisions of section 3.

Similar stringent provision is made for theadolescents. After section 14 of the principal Act anew section 14A is sought to be inserted to make theoffence cognizable so much so that the police canarrest without warrant.5

So far so good. The ideal is lofty—to wipe outchild labour! No one should now dare employ a child.But, look at the family in which the father ishandicapped or paralysed and unable to earn; mother,

through her labour as domestic help, does not earnenough to feed the family after paying rent for theshelter that they call home; children unable to findwork anymore due to the law. What should the childrendo—starve? The only alternative will be to beg or behired by criminal gangs and get initiated in thecrime world for a pittance?

How can a State that does not provide for universalemployment for adults, educated or not, that does notown responsibility for the old, the disabled and thesick, does not guarantee paid employment uponcompletion of schooling, can claim the moral right tomoralise on child labour ?

What is child-labour?

According to International Labour Organisation(ILO), the term child-labour is best defined as workthat deprives children of their childhood, theirpotential and their dignity, and that is harmful tophysical and mental development. It refers to workthat is mentally, physically, socially and morallydangerous and harmful to children, or work whoseschedule interferes with their ability to attendregular school, or work that affects in any mannertheir ability to focus during school or experience ahealthy childhood.6

UNICEF defines child labour differently. Accordingto them, a child labour is one who is involved inchild labour activities between five to eleven yearsof age, that is, at least one hour of economicactivity or at least 28 hours of domestic work in a

week, and in case of children between 12 to 14 yearsof age, he or she did at least 14 hours of economicactivity or at least 42 hours of economic activityand domestic work per week.7

In 2001, Indian Census office defined childlabour as participation of a child less than 17 yearsof age in any economically productive activity withor without compensation, wages or profit. Suchparticipation could be physical or mental or both.This work includes part-time help or unpaid work onthe farm, family enterprise or in any other economicactivity such as cultivation and milk production forsale or domestic consumption. Indian Governmentclassifies child labourers into two groups: mainworkers are those who work 6 months or more per year.A marginal child worker is one who works anytimeduring the year but less than six months in the year.8

Child Labour Laws in India:

As already stated the Constitution of India thatcame into force from 26.01.1950, by Article 24,prohibited employment of children below the age offourteen years in any factory or mine or in anyother hazardous employment only and not generally.The Article 21A later introduced by the Constitution(Eighty-sixth Amendment) Act, 2002,S.2(w.e.f.01.04.2010) made it a fundamental right toprovide free and compulsory education to all childrenof the age of six to fourteen years which was inaccordance with the then Article 45 of the DirectivePrinciples of the State Policy.

Other major legal initiatives aimed atelimination of child labour include: (1) TheFactories Act, that prohibits employment of childrenbelow the age of 14 years in any factory; (2) TheMines Act,1952 that prohibits employment of childrenbelow 18 years of age in a mine; (3) The Child Labour(Prohibition and Regulation) Act, 1986, thatprohibits the employment of children below the age of14 years in hazardous occupation identified in a listby the law; (4) The Juvenile Justice (Care andProtection) of Children Act,2000, that makes it acrime punishable with imprisonment for anyone toprocure or employ any child in any hazardousemployment or bondage; (5) The Right of Children toFree and Compulsory Education Act of 2009, thatmandates free and compulsory education to allchildren between 6-14 years and reservation of 25%seats in private schools for children ofdisadvantaged groups and physically challengedchildren; (6) The Child Labour (Prohibition andRegulation) Amendment Bill,2012, aims at prohibitingthe engagement of children(6-14) in all occupationsand of adolescents (14-18)in hazardous occupationsand processes.

Yet, it cannot be denied that India has highestnumber of child labours in the world, many of them asyoung as four. Census of India reports of 1991 and2001 show that the number of child labourers in thecountry increased from 11.28 million in 1991 to 12.6million in 2001. The census of India of 2011 foundthe total number of child labour aged 5-14, to be at

4.35 million and the total child population to be259.64 million in that age-group. This means areduction by 65% during the decade between the twocensuses. The reduction in percentagenotwithstanding, the problem of child labour stillcontinues to pose a big challenge before the nation.9

Way back in 1979, the government of India formed thefirst committee called Gurupadaswamy Committee tostudy the issue of child labour and to suggestmeasures to tackle it. The Committee examined theproblem in detail and made some far-reachingrecommendations while missing out on some. It rightlyobserved that as long as poverty continued, it wouldbe difficult to totally eliminate child labour andhence, any attempt to abolish it through legalrecourse would not be a practical proposition.10

Following the report of Gurupadaswamy Committee,but probably not based on it, the Child Labour(Prohibition and Regulation) Act was brought in1986.Thereafter, in accordance with the approachrecommended by the Gurupadaswamy Committee, anational policy on child labour was formulated in1987. It was approved by the cabinet on 14th august1987. The policy consisted of three main ingredients:

Legal Action Plan- With emphasis laid on strictand effective enforcement of legal provisionsrelating to child labour under various labourlaws to ensure that children are not employed inhazardous employments, and that the workingconditions of children working in non-hazardous

areas are regulated in accordance with theprovisions of the child labour Act. It alsoentails further identification of additionaloccupations and processes, which are detrimentalto the health and safety of the children.

Focussing of general development programmes forbenefitting child labour- Utilisation of variousongoing development programmes of otherministries /departments for the benefit of childlabour wherever possible. As poverty is the root-cause of child labour, the action plan emphasisesthe need to cover these children and theirfamilies also under various poverty alleviationand employment generation schemes of thegovernment.

Project-based plan of action-Launching ofprojects for the welfare of working children inareas of high concentration of child labour.Pursuant to this, in 1988, the national childLabour Project (NCLP) scheme was launched in ninedistricts of high child labour endemicity in thecountry. The scheme envisaged running of specialschools for child labour withdrawn from work. Inthe special schools, the children are providedformal/non-formal education along with vocationaltraining, a stipend of rupees 150/- per month,supplementary nutrition and regular health check-ups so as to prepare them to join regularmainstream schools. Under the scheme, funds are

given to the District Collector for runningspecial schools for child labour. Most of theseschools are run by the NGOs in the district.

The scheme of National Child Labour project wasrevised in 2003. This legal and developmentinitiative continued, with a central Governmentfunding of Rs 6 billion in 2011, targeted solely toeliminate child labour in India.11

The National Commission for protection of ChildRights (NCPCR) was set up in March 2007 under theCommission for Protection of Child Rights Act, 2005.The Commission’s mandate is to ensure that all Laws,Policies, Programmes, and Administrative Mechanismsare in consonance with the Child Rights perspectiveas enshrined in the Constitution of India and alsothe UN Convention on the Rights of the Child. Thechild, for the purpose, is defined as one between 0-18 age-group.

According to a recent news report, work has come toa grinding halt at the National Commission forProtection of Child Rights. The statutory body,tasked with monitoring violations of child rights,does not have either a chair-person or any of the sixmembers since October, 2014. The Commission has 1391cases of violations of the Right to Education Act ason December 2014 while cases of child rightsviolations and abuse are 2216 pending before it.After the term of Chairperson Ms Kushal Singh expiredin October 2014, the post still remains vacant

despite a Supreme Court order in February this yearto fill up the vacancy. The Commission has beenrendered a non-functioning body in the absence ofappointments to be made by the Government of the newdispensation at the centre.12

Causes of Child labour:

(i) Poverty:

Child Labour is not new to India nor is it aproblem of India alone. UNICEF estimates that Indiawith its larger population has the highest number oflabourers in the world under the age of 14 years,while sub-Saharan African countries have the highestpercentage of children who are deployed as childlabour. UNICEF has identified that poverty is thebiggest cause of child labour. The InternationalLabour Organisation (ILO) and Spreading Smilesthrough Education Organisation (OSSE) also suggestthat poverty is the biggest single force that driveschildren to workplace. Income from a child’s work iscrucial for the survival of the family in most cases.Even the Gurupadaswamy Committee observed that aslong as poverty continued, it would be difficult tototally eliminate child labour and hence, any attemptto abolish it through legal recourse would not be apractical proposition. There is little doubt;therefore, that we need to wipe out the root-cause,that is, poverty in order to achieve the state of asociety completely free from child labour. Tounderscore the causes of poverty in our societyobjectively and to confront them on war-footing,

therefore, must assume our utmost concern inimportance of state policy.

(ii) Unproductive formal education:

According to an ILO study published in 1999 onIndian diamond industry, one of the main causes ofchild labour is that the parents send their childrento work because they see education as expensive,education quality offering no real value, whileartisan work in diamond and gem industry to be moreremunerative as the child grows up.13 According toanother report published in 2014 suggests that oneout of every three graduates in India is unemployed.14

According to labour Bureau’s “ Third annualEmployment and Unemployment survey 2012-2013 releasedon November 29,2013, unemployment rate amongstilliterate youth is lower than educated youth. Acomparison with the earlier report by labour bureaushows that the unemployment level has increasedduring 2012-2013 over 2011-2012. While unemploymentrate among illiterate youth is lowest with 3.7 percent for the age group 15-29 years at all India levelin 2012-2-13, the unemployment rate in the samecategory was reported at 1.2 per cent in 2011-2012report. Similarly, the unemployment amongst thegraduate youth that happened to be 19.4 per cent in2011-12 increased to 32 per cent during 2012-2013.15

This is obvious from the study that the kind formaleducation imparted in India is no panacea for theevil of child labour but, on the contrary, a cause ofit. Another study clearly points out that India needsa policy of ‘earn while you learn’ or skill based

education. It notes “one of the biggest problems thatIndia faces towards eradicating its unemploymentproblem is the inter-temporal issue of making aliving versus learning a skill. Rather than thetraditional 12+4 years method of schooling thereneeds to be a different stream where skills aretaught to those who need them to earn a living.” 16

(iii) Total absence of social security in informal unorganised sector:India provides no form of social security in theinformal or unorganised labour sector which is thelargest labour force in India. This results intoabject poverty in case of diseases like tuberculosisresulting into temporary disability or permanentdisability in case of an accident in the family. Inevery locality it noticeable that a child iscompelled by the force of circumstances to give upeducation and go for work as the only earning personin the family. Until and unless the state takesresponsibility for providing economic security tosuch families, children of such families cannot beprevented from going for earning money in childhood.17

(iv) Caste-system in India: Due to the prevalence of caste-system in India, a child is born in a caste whichdetermines his future occupation and status insociety. A child initiated in the caste occupationfrom early childhood is more likely to be capable ofearning his livelihood than one who is sent forschooling in a formal school the qualification ofwhich provides no guarantee for any remunerative jobin future.18

(v) Dowry system: One of the social evils thatcontribute heavily to child labour is the practice ofdowry system in marriages Indian society irrespectiveof caste or religion. Many a child worker especiallya boy on personal interview reports that the familyneeded money for the growing sister’s impendingmarriage. It is unfortunate that despite the lawsprohibiting the giving or receiving of dowry inmarriages, the social monster is growing and issurely one of the causes that drive children to workinstead of to schools.19

State of poverty in India:

There is no unanimity of opinion as to themethodology for identification of families livingbelow poverty line. The World Bank too has reviewedits poverty definition and calculation methodologiesseveral times over the last 25 years. From $ 1 perday in early 1990s it set the poverty line at $ 1.08per day on purchasing power parity basis (PPP) in1993. In 2005, after extensive studies of cost ofliving across the world the World Bank raised themeasure for Global Poverty Line to reflect theobserved higher cost of living and determined therates at $ 1.25 per day on 2005 PPP basis. In May2014, the World Bank proposed another major revisionindexing it to 2011 U.S. Dollar. The new method setsthe poverty line at $ 1.78 per day on 2011 PPP basis.According to this revised World Bank methodology,India had 179.6 million people below the new povertyline while the World had 872.3 million people belowthe poverty line as of 2013. India, in other words,

while having 17.5% of total world’s population, had20.65 % share of world’s poor as per the World Bank’spoverty definition! Despite tall claims of economicprogress, one quarter of India’s population earnsless than the Government specified poverty thresholdof a ridiculous figure of Rs 32 per day(approximatelyUS $ 0.6) bordering on a farce intended to hoodwinkthe gullible with an illusion of progress20.

United Nation’s Food and Agricultural Organisationhas recently released a report in Rome on the Stateof Food Security in the World, 2015 which gives Indiathe dubious distinction of the ‘world’s most hungrynation’ having under-nourished people estimated at194.6 million, or about one in every four such peoplein the world. The report says that globally, thenumber of under-nourished people has fallen by 216million between 1990-92 and 2015, from just over abillion to 795 million. India’s contribution to thisfall has been small, with its number down by just15.5 million during the period. In this regard, Indialags far behind both Nepal and Bangladesh, and hasabysmally failed both the Millennium Development Goal(MDG) and World Food Summit (WFS) goal of 1996.21

Given the appalling level of poverty in India, howfar can we succeed in achieving the goal of completeelimination of child labour in India when admittedlypoverty is the root-cause? How does a poor familysurvive without child labour? Any ruthlesssuppression of child labour throws up terriblealternative options to a child driven by hunger—to go

for begging or to be recruited by criminal hawks towhich they are likely to fall easy prey!22

There are anti-beggary laws in force in parts ofthe country. The Bombay Prevention of Begging Act,1959 has been extended to the National CapitalTerritory of Delhi by G.S.R. 638, dated 2nd June,1960. This draconian law would have been enough tocriminalise beggars by clubbing them with thehardened criminals in the jails but for the humaneintervention of the Court (Ram Lakhan v. State).`TheJuvenile Justice (Care and Protection ) Act, (JJ Act)has the unintended effect of making adolescentsstruck by poverty easily hireable by the mafia forterrorist and other heinous crimes.

In this context, we must not lose sight of apainful page from the economic history of India:

“In nineteenth century, the East India Company’s (EIC)policy virtually ruined not only the agricultural sectorin Bengal but destroyed its rural cottage industry. Consider,e.g., the case of Muslin – the finest fabric ever woven in theworld, which weighed less than 10 grams per square yard. Till1813, Dhaka muslin continued to sell in London with 75 percent profit and was cheaper than the local British makefabrics. Alarmed at this competition, the British imposed 80per cent duty on the imported Bengali product. But more thanthe duty, the EIC was bent on ruining the muslin trade byintroducing machine-made yarn, which was introduced in Dhakaby 1817 at one-fourth the price of the Dhaka yarn. The Muslinweavers were also paid so little that their families remainedhungry. Another unsavoury fact associated with the destructionof this Dhaka Muslin industry was that the thumbs and indexfingers of many yarn makers were chopped off by the British inorder to prevent them from twisting the finer yarns required

for the muslins, which would reduce the competitive edge thatMuslin had enjoyed thus far over its counterpart fabrics madein Europe.” - Habib Siddiqui23

It is in this back-drop that the US Policy onchild labour becomes suspect in the present highlycompetitive global economy. In December 2014, theU.S. Department of Labor issued a List of Goods produced byChild Labor or Forced Labor and India figured among 74countries where significant incidence of criticalworking conditions has been observed. Unlike anyother country, India was attributed 23 goods themajority of which is produced by child labor in themanufacturing sector.24

Child Labour incidence in India is mostlyidentified in diamond industry, silk manufacture,carpet weaving, fire-works manufacture, bidimanufacture, domestic labour, coal mining etc. Thereis need for segregation of industries that requirehigh level of skill development and others which aresimply hazardous or exploitative of children. It is awell-known and universally admitted fact that certainskills are best achieved in childhood and not laterin life, such as, linguistic skills, fine andperforming arts, painting, music, crafts that requirehigh level of skill and practice, sports, mechanicsetc., to name a few. India cannot afford to lose outon the skills it has acquired through family or castebased occupations that provide a competitive edge toIndians in world market in some sectors of theeconomy. For preservation, cultivation anddevelopment of such traditional skills we need to

adopt an alternative education policy that combinesboth the formal education and skill developmentprogramme or, in other words, Institutes modelled asschool-cum-factory in specialised sectors wherechildren can earn while they learn too.

A cultivator, a carpenter, an electrician, aplumber, a mason, a motor mechanic, a blacksmith, awelder et al are great assets in an economy whetherholding an academic qualification or not. They arenever unemployed and are capable of earning their ownlivelihood more than an academically qualified butunskilled graduate. A cultivator contributes more tothe economy than an IAS officer, a glorified babu insociety. We need to reclaim and re-establish dignityof labour and encourage productive contribution tothe national economy while ensuring a level of formaleducation in the three Rs including English literacyso essential now in the present-day globalisedeconomy for living a life with dignity.25

Although law is also a necessary tool insocial engineering, but without addressing the coreissues behind the problem of child-labour, anyattempt to totally eradicate child labour throughlegal means only, I am afraid, will turn out a wild-goose chase and even may give rise to undesirablepathological symptoms in society.

Notes:-

1. Bruj Khalifa is the tallest building in the world located inDubai;

2. Charlie Chaplin, My Autobiography, pp. 13, 72;

3. According to Govt. of India, Rs 32 is the benchmark ofpoverty line;

4. The new amendment is controversial for two reasons:(1) itpermits working in the family business and (2) prohibitsoutsourcing by home –based work or joining any technicalinstitution;

5. By making the offence cognizable, the children and theirparents are made subject to harassment and registration ofcriminal cases against the weakest section of society;

6. “What is child labour?” International Labour Organisation,2012;

7. United Nation’s International Children’s Educational Fund;“Definitions: child protection”, 2012;

8. “Figures: An analysis of Census 2001 Child labour facts andfigures”;

9. Between 2001and 2011the census reports show a 65% declinein child labour in India;

10. Gurupadaswmy Committee’s report;

11. It was the position up to 2011during the UPA-II regime.

12. The situation as reported in TOI on May 26, p.18 duringthe present BJP led NDA regime;

13. Chandra Kogaorkar and Geir Myrstad (1997). “ Child Labourin the Diamond industry” International Labour organisation, pp51-53;

14. Report by Ritu Sharma published on September 24, 2014 inOneindia titled “ With one out of every three graduatesunemployed in India, will Modi be able to fulfil his promise?”

15 “Educated unemployed: A challenge before sustainableEducation” by Jitendra Kumar Dixit and others (ICSM-2011),BITS, Pilani, India, Nov.10-12,2011;

16. para 6.3 supra;

17. There is no social security in India outside of organisedsector which results into economic burden of running thefamily on the shoulders of children;

18. Caste –system in India is occupation based;

19. Dowry system in marriages is one of the major causes thedrive children to earn: comment based on personal study ofworking children by the author;

20. Ghose, Jayati ( 4 October 2011).” India’s poverty line”.London: Guardian UK;

21. The Hindu, May 28;

22. Begging is not prohibited in most of India except in thecities of Mumbai and Delhi;

23.See blog of Siddiquee Dr Habib, titled “ Bengal underEnglish Rule (1757-1905): An Analysis;

24. Wikipedia;

25. English literacy and technical aptitude are essentialinputs for ensuring employability emphasised by ILO . BBC NEWSRetrieved 20 September 2011.

(The author is an advocate@ Supreme Court of India and asocial activist)

Abstract:

The root-cause of child labour is poverty among othersocio-economic causes. This article is an amoral study of the

problem of child labour in India. The author argues that, bylaws alone, child labour cannot be wiped out unless its rootcauses are sincerely addressed. Any attempt to eradicatechild labour by the force of law alone may give rise to moreundesirable pathological symptoms in society.

Keywords:

Child Labour, laws, poverty, skill development, unorganisedsector, social security, formal education system, caste-system, dowry system, beggary and criminalisation of thejuvenile.