Child labour Child labour is a source of child exploitation and child abuse as stated by the International Labour Organisation (ILO). UNICEF describes child labour as
• Full time work at too early an age
• Too many hours spent on working
• Work that exerts undue physical, social or psychological stress
• Work and life on the streets in bad conditions • Inadequate pay
• Too much responsibility
• Work that hampers access to education
• Work that undermines children‘s dignity and self-esteem such as slavery or bonded labour or sexual exploitation
• Work that is detrimental to children‘s full social and psychological development.
CRC recognises and provides rights that are specific to child labour like Article 31 and 32 – all children have a right to relax play and to join in a wide range of activities and the Government should protect children from work that is dangerous or might harm their health or education.
As per ILO there were about 246 million child labours aged between 5 to 15 years. In India itself it is 12.6 million.
Child Labour (Prohibition and Regulation) Act, 1986 The Child Labour (Prohibition and Regulation) Act aims at regulating and prohibiting the working of children in certain sectors.
The salient features of the Act are:
1) The Act prohibits child labour in a number of occupations.
2) The Act defines children who are below 14 years of age.
3) The Act provides certain rules for the children who are working in non-prohibited sector: i) Working hours should not be more than 6 hours per day with not more than 3 hour continuous work. ii) A child should not be employed between 7 p.m. and 8 a.m. Overtime is not allowed. iii) In a day, child can be employed in only one establishment. iv) The child employed should be allowed a holiday of one whole day in a week. The day should be clearly specified, and should not be altered more than once in three months. v) This is not applicable in workshops managed with the aid of family or in workshops run by schools established by the Government. vi) The employer needs to send the labour inspector within 30 days of employment a written notice giving details of the children and nature of occupation. A register also needs to be maintained. vii) The age of the child, if there is no documentary evidence, will be as stated by the prescribed medical authority.
4) The Act also prescribes penalties: i) In case of employment of children in prohibited occupations/processes, the punishment is three months to one year of imprisonment or fine between ten thousand rupees and twenty thousand rupees or both imprisonment and fine. ii) For repeat offences, the imprisonment may be extendable to two years. a) If an employer fails to comply with regulatory system envisaged including sending notices or maintenance of registers, he shall be punishable with simple punishment of one month or less or fine up to ten thousand rupees or with both.
5) The Act provides for a Child Labour Technical Advisory Committee to advise the Government for the purpose of addition of occupations and processes to the schedule. Criticism While the move by the Government to ban child labour in these sectors is welcome, child rights groups such as CRY have criticised the move as inadequate for the following reasons: 1. Restriction over hotels, dhabas and other recreation centres but it is not clear whether this applies to the household, manufacturing sector, where a vast number of children are employed in similar working conditions. 2. It does not cover more than 15% of the child labour population in India. 3. The age group of 15 to 18 years are not covered under this Act. 4. Certain terms are not defined clearly. Such as the term hazard does not only mean physical, but also psychological and emotional hazards. 5. The Act does not specify the minimum age of employment in occupations and processes other than the prohibited ones. This is contrary to The UN Convention on the Rights of the Child, which specifies this to be eighteen years. Procedure for Prosecution of Offences 1. The following procedure has been laid down under the Act for the prosecution of offences: Any person, police officer or inspector may file a complaint of the commission of an offence under competent jurisdiction. 2. Every certificate as to the age of a child, which has been granted by a prescribed medical authority, will be conclusive proof of the age of the child. 3. Only a Metropolitan Magistrate or a Magistrate of the first class and above can try any offence under this Act.
Problems in Enforcement of the Legislation The reasons for prosecution leads to conviction:
1. Lack of evidence to prove that there was child labour or the rules were not followed.
2. Lack of evidence pertaining to the age of the child. Lack of evidence leads to lighter sentence in child labour matters or delayed judgements. This may be due in part to the judiciary being insensitive. Judicial Trends In PUDR v Union of India, the Court invoked constitutional provisions (Article 24) to state that no child below 14 years can be employed in this work. The Supreme Court has stated in this case that Article 24 ―embodies a fundamental right which is plainly and indubitably enforceable against everyone. This judgment has some important features: i) The right is enforceable by itself, independent of legislation. The court, directly interpreting Article 24, declared the construction industry as hazardous to children ii) The right, by virtue of its constitutional mandate, is enforceable against private individuals (employers, in this particular case, building contractors) iii) Even if the State is not the employer (in this particular case, the Union Government, Delhi Administration and the DDA were the employers), it does not absolve the State of its constitutional obligation to see that the fundamental right is not violated. iv) The State‘s role becomes all the more important, when the ―injured party belongs to the weaker section of humanity and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him.
In the case of Bandhua Mukthi Morcha v Union of India and others. It was held that 1. compulsory education to all children either by the industries itself or in co-ordination with it by the State Government to the children employed in the factories, mine or any other industry, organised or unorganised labour with such timings as is convenient to impart compulsory education, facilities for secondary, vocational profession and higher education 2. Periodical health check-up nutrient food etc.
In M.C. Mehta v State of Tamil Nadu and others), the court held that children should be assured of 60 per cent of the minimum wage paid to an adult. The Court laid down the regulations in respect of working conditions of children employed in non-hazardous occupations:-
i) Regulating working hours.
ii) State wide survey on child labourers with district as the unit.
iii) Establishment of a Child Welfare fund through a mandatory contribution of Rs 20,000 per child to be paid by the offending employers.
iv) State should ensure employment of one adult member of the family of the child withdrawn from labour or else to contribute Rs 5,000 to the fund.
v) From the fund, the financial assistance to be provided to the families of the children so withdrawn provided that children are attending schools.
National Policy on Child Labour It seeks to address socio-economic issues having a bearing on child labour and to provide a framework for a concrete programme of action, along with the legal measures already being implemented. 1. The Legislative Action Plan: The Plan envisages strict enforcement of the provisions of the Child Labour (Prohibition and Regulation) Act 1986, the Factories Act 1948, the Mines Act 1952, the Plantation Labour Act 1951 and other enactments dealing with the employment of children. 2. Project Based Plan of Action: It involves withdrawing children from hazardous employment and ensuring their rehabilitation through education in special schools.
TERMINAL QUESTIONS
- What are the provisions in the Constitution for the prohibition of child labour?
Certain Articles such as Articles 21, 21A, 23, 24, 39, 39(f), 41, 45, 51A (k) provides various protection against Child labour and provides certain rights to children.
- What are the provisions mentioned in the Child Labour (Prohibition and Regulation) Act 1986 regarding hours and period of work for children?
6 hours, one shit cannot be more than 3 hours. Off day once a week that should be fixed and can be changed only once in 3 months.
- What kind of penalties are envisaged under the Act?
The Act also prescribes penalties: i) In case of employment of children in prohibited occupations/processes, the punishment is three months to one year of imprisonment or fine between ten thousand rupees and twenty thousand rupees or both imprisonment and fine. ii) For repeat offences, the imprisonment may be extendable to two years. b) If an employer fails to comply with regulatory system envisaged including sending notices or maintenance of registers, he shall be punishable with simple punishment of one month or less or fine up to ten thousand rupees or with both.
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