This article is written by Shristi Suman, a second-year student of Symbiosis Law School, Hyderabad. In this article, several provisions of the Child Labour (Prohibition and Regulation) Act, 1986 have been discussed.
The Government of India had promulgated the legislation of The Child Labour (Prohibition and Regulation) Act, 1986 to regulate provisions related to child labour practices in India. The Government made substantial changes in the provisions of the Act in the year 2016 and from thereon a complete prohibition has been imposed on the employment of children who are below the age of 14 years. Many provisions have been made under the Act regarding the employment for the children who are above the age of 14 years.
The Declaration of the Rights of Child, 1959
Declaration of the Rights of the Child, 1959 was adopted by the United Nations General Assembly. The rights of the children were defined for the first time by the Declaration of the Rights of Child, 1959. The Declaration was drafted by Eglantyne Jebb and is also known as the Geneva Declaration of the Rights of the Child. The Declaration is a document that consists of the rights of children. It was first adopted in 1924 by the League of Nations and then in 1959 by the United Nations. The Declaration includes the following rights:
- The child must be provided all those means which are essential for their normal development.
- If a child is found to be hungry or sick then the child must be fed and nursed.
- If a child is backward or delinquent then the child must be helped and recovered.
- In case the child is an orphan or abandoned then shelter should be provided to the child.
- In times of distress, relief must be provided to children first.
- The children must be protected from every kind of exploitation when they are put in a position to earn a livelihood.
- The children must be made conscious of the fact that the talent they possess should be devoted to the service of their fellow men.
This document was endorsed by the League of Nations General Assembly in 1924 as the World Child Welfare Charter. It was reaffirmed in 1934 by the League of Nations General Assembly.
The International Convention on the Rights of the Child, 1989
The International Convention on the Rights of the Child, 1989 is a human rights treaty that includes the rights of children which are related to civil, political, social, health and cultural rights. A child is defined by the Convention as a human being who is under the age of eighteen years unless the law applicable to the child specifies a different age clause for the age of majority.
The Nations which ratified the Convention are bound to follow it under international law and compliance of the same is checked by the UN Committee on the Rights of the Child. The Nations that have ratified the Convention are required to report to the United Nations Committee on the Rights of the Child. The Committee checks on their advancement in the implementation of the Convention for providing rights to children in their respective Nations.
The Convention works for the basic needs and rights of children in order to protect their interests. A child has a right to life which includes the right to identity, and the right to be raised by both parents even in case they are separated. The Convention works towards preserving such rights of children by putting an obligation on parents to perform all their responsibilities towards their child as parents. The Convention protects children from any kind of exploitation and excessive interference.
The disputes which involve a child have to be tried separately with care and the child’s viewpoint has to be heard in such cases. Courts are not allowed to sentence a child with capital punishment. It is an obligation of Nations to ensure that no child is sentenced with cruel or degrading forms of punishment.
Rights of Child and the Indian Constitution
According to the Indian Constitution, the rights are ensured to the citizens of the country. The children are also given rights under the Constitution as they are considered citizens of the country. Considering their special status, special provisions are made for children under the Constitution. The Government can make special provisions for the protection of the rights of children.
The leading amendment made for the protection of the rights of children is the 86th Constitutional Amendment i.e. Right to Education. Right to Education was made a Fundamental Right in order to protect the basic right of children to receive an education. 86th amendment guarantees the following:
- The right to free elementary education that was made compulsory under Article 21 A of the Indian Constitution.
- Right to protection till the age of fourteen years from any kind of hazardous employment which is provided under Article 24 of the Indian Constitution.
- Article 39(e) of the Constitution protects children from any kind of abuse or forced employment which is not suitable for their age and ability.
- The children are provided with equal opportunities, facilities, freedom, dignity, and protection under Article 39 (f) of the Indian Constitution.
- Article 45 of the Constitution ensures early childhood care and education to the children until the age of 6 years.
Besides the special provisions which are made under the Constitution, the children also have equal rights as any other adult citizen of the country.
Prohibition of Employment of Children in certain occupations and processes
Child Labour (Prohibition and Regulation) Act, 1986 aims to eradicate any kind of child abuse in the form of employment and prohibit the engagement of children in any kind of hazardous employment, who have not completed 14 years of age. The Act prohibits the employment of children in certain occupations and processes. The occupations which are prohibited are mentioned in the Act under the Schedule in Part A. The prohibited occupations for children under 14 years are:
- Occupations that are related to the transport of passengers, goods or mails by railway;
- Cinder picking, clearing of an ash pit or building operation in the railway premises;
- Working in a catering establishment which is situated at a railway station and if it involves moving from one platform to another or from one train to another or going into or out of a moving train;
- The occupation which involves work related to the construction of a railway station or any other work where such work is done in close proximity to or between the railway lines;
- Any occupation within the limits of any port;
- Work which involves the selling of crackers and fireworks in shops having a temporary license;
- Working in Slaughterhouses.
Prohibited processes for children under the age of 14 years are mentioned under the Schedule in Part B. They are as follows:
- The process involving the making of Bidi;
- The process which involves carpet-weaving;
- Manufacturing cement or bagging of cement;
- The processes such as Cloth printing, dyeing, and weaving;
- The processes that involve the manufacturing of matches, explosives, and fireworks;
- Mica-cutting and splitting;
- Any manufacturing process such as shellac manufacture, soap manufacture, tanning;
- The process of wool-cleaning;
- Work that is related to the building and construction industry;
- Manufacture of slate pencils;
- Manufacture of products from agate;
- Manufacturing processes in which toxic metals and substances such as lead, mercury, manganese, chromium, cadmium, benzene, pesticides and asbestos are used;
- Cashew and Cashew Nut descaling and processing;
- Soldering processes in electronic industries.
The Act in total prohibits approximately 13 occupations and 51 processes for the employment of children. Article 24 of the Indian Constitution includes the provision for the prohibition of employment of children in factories. The Act also lays down certain guidelines for employers, which is to be followed in case the employee is a child of age less than 14 years. According to the Act, the employer cannot make a child employee work between 7 p.m. and 8 a.m. and no overtime is allowed for them. It is not allowed for an employer to make a child work for more than 3 hours without an interval of at least one hour and in total, an employer should not make a child work for more than six hours a day. Adequate provisions must be made by the employer for the health and safety of the child employees. Basic facilities such as drinking water, toilets, disposal of waste, ventilation, etc must be provided by the employer. The employer needs to notify the Factory Inspector if in case he employs a child for employment. Production of age certificate of the child employee is also needed according to the rules of the Act.
Power to amend the Schedule
The Central Government has the power to amend the Schedule after giving notification in the Official Gazette. The notification for such amendment must be given in advance of not less than three months. The notice can be given by notification to add any occupation in the schedule or any process to the schedule. After such notice is provided to Official Gazette to add any occupation or process, it is deemed to be amended accordingly.
Child Labour Technical Advisory Committee
The Central Government may, if it thinks it to be necessary can constitute an advisory committee i.e. the Child Labour Technical Advisory Committee by giving notification about it in the Official Gazette. It is the duty of the Committee to advise the Central Government if there’s a need to add occupations or processes to the Schedule. The Central Government appoints the members of the Committee but the Committee should not exceed more than 10 members. The Committee shall also consist of a Chairman. There isn’t any limitation on the number of meetings Committee shall have. The Committee shall meet whenever they feel necessary and the meetings shall be regulated according to the procedure which shall be decided by them.
The Committee may itself constitute one or more sub-committees if they feel a need to do so.
The Chairman and other members of the Committee are entitled to an allowance.
Regulation of Conditions of Work of Children
There are certain regulations provided under the Child Labour (Prohibition and Regulation) Act, 1986 which the employer needs to follow while employing a child in the establishment. Proper work conditions are to be provided by the employer.
Application of Part
The provisions of this Part of the Act shall apply to an establishment or any class of establishments in which the occupations or processes which are referred to in Section 3 are not being carried on.
Hours and period of work
As per the Act, no child employee shall be allowed to work in any establishment in excess of the number of hours that have been decided on and prescribed for such an establishment or class of establishment. The number of hours shall be fixed by the establishment and the child employee must not be allowed to work for more than three hours without a break of one hour. The total number of hours of work for a child employee shall not exceed six hours. Six hours shall also include one hour of interval. According to the Act, the employer cannot make a child employee work between 7 p.m. and 8 a.m. and no employer must permit the child employee to work overtime. If a child has already worked in an establishment in a day, then such a child must not be permitted to work in another establishment on the same day.
Every child who is employed in an establishment shall mandatorily be allowed a holiday each week. The holiday must be for a whole day. The day of the week must be decided on which it would be a holiday for the employees of the establishment and the notice regarding the same must be exhibited in a conspicuous place of the establishment. The notice should be of a permanent nature and should not be altered more than once in three months.
Notice to Inspector
Notice is needed to be sent to the Inspector within whose local limits the establishment is situated by the employer of such establishment if he employs a child employee or by the occupier of an establishment in which a child is employed or is permitted to work. The notice to be sent must be in writing. It must contain the following particulars:
- the name of the establishment and place in which it is situated,
- name of the person who manages the establishment,
- the postal address of the establishment,
- the details such as the nature of occupation or process which is carried on in the establishment.
Every employer who permits a child to work in his establishment is needed to send a notice within 30 days to the Inspector within whose local limits the establishment is situated. Where a process is carried on by the occupier with the aid of Government or it receives assistance or recognition from Government for it then such establishment shall not be subject to the provisions of Section 7, 8, 9 of the Act.
Dispute as to age
In case if a question arises between an Inspector and an occupier on the age of the child who was permitted to work by the occupier in an establishment then the Inspector can prescribe a medical authority to decide on the age of such a child in case of absence of an age certificate.
Maintenance of register
The occupier shall maintain a register which shall include information with respect to children who are employed or permitted to work in his establishment. The register which is made available by the occupier for inspection at all times shall contain:
- The name and date of birth of the children who are employed by the occupier;
- Number of hours and period of work for which the child employee is made to work;
- The nature of employment and the work which the child employee is made to do;
- Other particulars which may be prescribed.
Display of notice containing abstract of Sections 3 and 14
The notice containing abstract of Sections 3 and 14 of the Act shall be displayed by every occupier of the establishment in a conspicuous and accessible place of the establishment and in case the employer is a railway administration or a port authority then the notice must be displayed in a conspicuous and accessible place at every station or within the limits of a port as the case may be. The notice must be written in a local language and in the English language.
Health and Safety
The Government may by giving a notification to the Official Gazette make rules for the health and safety of the children who are employed or permitted to work in an establishment or any class of establishments if the Government feels necessary to do so. According to the Act the rules which must be followed by the establishment for the purpose of safety and cleanliness are as follows:
- The cleanliness of the place of work must be taken care of and it should be free from any kind of nuisance;
- There must be a proper place for disposal of wastes and effluents;
- Proper provisions for ventilation should be made and an adequate level of temperature should be maintained in the place of work;
- Provisions should be made to reduce dust and fumes;
- Artificial humidification shall be made;
- Lighting must be proper in the place of work;
- Drinking water must be provided;
- Toilets must be made in the place of work for the employees;
- Spittoons should be provided in order to keep the workplace clean;
- The machines which are in the workplace should be fenced properly;
- Children must not be allowed to work near machinery which is in motion;
- Children must not be permitted to work on dangerous machines;
- Children must be instructed, trained and supervised in relation to the employment of children on dangerous machines;
- Device for cutting off power should be used;
- Self-acting machines should be used in the workplace;
- Easing of new machinery;
- Proper floors should be made and proper means to access through stairs shall be made;
- Pits, sumps, openings in floor shall be made;
- Child employees shall not be permitted to lift excessive weights while working;
- Protection for eyes must be provided;
- Children must not exposed to explosives or inflammable dust, gas, etc;
- In case fire is used in work, proper precautions must be taken;
- Proper maintenance of buildings and machinery shall be taken.
When an employer employs a child or permits a child to work in contravention of the provisions of Section 3, the employer shall be liable for punishment with imprisonment for a term which may extend to one year or with fine and the fine imposed shall not be less than rupees ten thousand and which may extend to rupees twenty thousand or with both.
Whoever is convicted of the said offence under Section 3 and repeats the same offence again in future then he shall be punished with imprisonment for a term which shall not be less than six months and can be extended to two years.
When an employer fails to give a notice as stated under Section 9 or fails to maintain a register comprising the details of child employees as required by Section 11 of the Act or if the employer makes any false entry in any such register, or fails to display a notice containing an abstract of Section 3, or if the employer fails to comply with or contravenes any other provisions of the Act or any of the rules which are made thereunder, he shall be punished with simple imprisonment which may extend to one month or with fine which may extend to ten thousand rupees or with both imprisonment and fine.
Modified application of certain laws in relation to penalties
In case a person is found guilty and is convicted of a contravention of any of the provisions which is mentioned in the Act, then he shall be liable to pay penalties as per sub-sections (1) and (2) of Section 14 of this Act.
The provisions which are referred to in Section 14(1) of the Act are as follows :
- Section 67 of the Factories Act, 1948
- Section 40 of the Mines Act, 1952
- Section 109 of the Merchant Shipping Act, 1958
- Section 21 of the Motor Transport Workers Act, 1961
Procedure relating to offences
A police officer, Inspector or any person can file a complaint against an employer for the commission of an offence under the Act. A complaint can be filed under this Act in any court which has competent jurisdiction for it.
In cases where there is a question as to the age of a child employee, every certificate as to the age of a child that is granted by a prescribed medical authority shall be considered to be conclusive evidence as to the age of the child employee to whom it relates.
No court shall try a case of an offence under this Act which is inferior to that of a Metropolitan Magistrate or a Magistrate of the first class.
Appointment of Inspectors
The Government may appoint Inspectors for the purposes of securing compliance with the provisions of the Act and any Inspector who is appointed by the Government for such a purpose shall be deemed to be a public servant within the meaning of the Indian Penal Code.
Power to make rules
The Government may make rules subject to previous publication by giving notification in the Official Gazette. The rules may provide provisions on the following matters:
- The term of office of the Chairman and members of the Committee, or the provisions related to the manner of filling casual vacancies, or provisions related to allowances payable to the Chairman and members of the Child Labour Technical Advisory Committee.
- Number of hours for which a child may be required or permitted to work under Section 7 (1) of the Act.
- Rules related to grant of certificate when the question arises as to that of the child employee. A charge may be made for the certificate by the Government for issuing such a certificate. No charges must be made for the issue of a certificate if the application for such a certificate is accompanied by evidence of the age of the child.
- Rules related to the particulars of the register which is to be maintained by the occupier who permits a child to work according to Section 11 of the Act.
Rules and notifications to be laid before the Parliament or State legislature
Every rule which is made by the Government under this Act and every notification which is issued under Section 4, shall be laid before each House of Parliament as soon as possible. The rules and notifications must be laid before the Houses of Parliament while they are in session for a period of 30 days. It may be comprised in one session or in two or more successive sessions. If both houses agree jointly on a modification that is to be made in the rule or notification, then such notification or rule can be made or issued only when such a modification is made otherwise, the rule or notification cannot be made at all. The rules made by the Government under this Act shall come into practice as soon as it is made.
Certain provisions of law not barred
Subject to the provisions which are mentioned in Section 15 of the Act, the provisions of this Act and the Rules made by the Government under this Act shall be in addition to and not in derogation of the existing provisions of the Factories Act, 1948 (63 of 1948), the Plantations Labour Act, 1951 (69 of 1951) and the Mines Act, 1952 (35 of 1952).
Power to remove difficulties
In case, if any difficulty arises in giving effect to the provisions of the Act, then the Government may make such provisions which are not inconsistent by order published in the Official Gazette, make such provisions not inconsistent with the provisions of this Act by an order which shall be published in the Official Gazette. The order which shall be published shall not be made after the expiry of a period of three years from the date on which the Act received the assent of the President. Every order that is made under section 21 of this Act shall be laid before the Houses of Parliament as soon as it may be possible.
Repeal and Savings
The Employment of Children Act, 1938 was repealed by the Child Labour (Prohibition and Regulation) Act, 1986. Notwithstanding such repeal, anything that is done or any action that has been taken or claimed to have been done under the Act which has been repealed, then, in so far as the provisions of the repealed Act is not inconsistent with the provisions of this Act shall be deemed to have been done or taken under the corresponding provisions of the present Act.
Amendment of Act 11 of 1948
Through the Amendment of Act 11 of 1948, the word ‘adolescent’, ‘adult’, ‘child’ was defined in Section 2 of the Minimum Wages Act, 1948. According to the Amendment, ‘adolescent’ refers to a person who has completed 14 years of age but did not complete 18 years of age. ‘Adult’ refers to a person who has completed 18 years of age. ‘Child’ refers to a person who has not completed 14 years of age.
Amendment of Act 69 of 1951
Amendment of Act 69 of 1951 was made in Section 2, Section 24 and Section 26 of the Plantations Labour Act, 1951. In Section 2 the word ‘fifteenth’ was substituted with the word ‘fourteenth’. Section 24 and Section 26 of the Act were omitted. The words ‘who has completed his twelfth year’ in Section 26 of the Act were omitted.
Amendment of Act 44 of 1958
Amendment of Act 27 of 1961
The Child Labour (Prohibition and Regulation) Act, 1986 prohibits children from working in hazardous employment. The Act provides a minimum age limit for employment as 14 years. The provision of the Act has helped in reducing the rate of child employment in India. It has reduced various hazardous risks to which child employees are exposed at the workplace as well as the exploitation by laying down the provisions for maximum number of hours or period of work and various other related issues. The Act has played an important role in reducing hazardous employment for children in India. If it is found that the employer is employing a child in contravention of the provisions of the Act then, such employer will be liable for punishment which includes imprisonment or fine or both. Although the Act has reduced the number of child labors, this evil is still lingering in our society due to the socio-economic issues i.e. poverty and illiteracy and for overcoming the evil of child labor, collective responsibility has to be taken up by the society at large as Justice Subba Rao, the former Chief Justice of India rightly said that; “Social justice must start with the child. Until and unless a tender plant is properly tended and nourished, it has a small chance of growing into a strong and useful tree. So, the first preference in the plate of justice should be stated to the well-being of children.”
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