In this blogpost, Rajnandini Mahajan, Student, RGNUL, Punjab, writes about the laws on child labour in India and the judicial trends.
Child labour is not new to India. In fact, it is so rampant that it is now considered normal. ‘Child labour’ refers to a situation where work is done by a person below 15 years of age. The work should be such that it adversely affects the mental and physical health of the child. According to 7th All India Education Survey, child labour in India is about 17 million. This is an alarmingly high number for a country which aspires to become a superpower in future. A country can never progress unless its future generation is well-equipped with knowledge and education. Instead, millions of children in India are working hard at hazardous places for a square meal. In order to tackle this problem, the lawmakers have made various provisions. However, child labour is still regulated and not completely abolished in India.
CONSTITUTION OF INDIA
The problem of child labour was prevalent even in colonial India and many statutes were enacted by British imperialists to curb this. Quite naturally, even the framers of Indian constitution were not oblivious to the problem. Thus, certain provisions were made in the constitution itself regarding child labour. Article 24 prohibits employment of any child below the age of 14 in factory/mine or any other hazardous activity. Further, Article 39-e direct states to make policies towards securing that the health and strength of workers, men and women and the tender age of children are not abused and that they are not forced by economic necessity to enter vocations unsuited to their age and strength. However, these provisions are not very effective because the constitution is silent on the employment of children above the age of 14 years and employment in non-hazardous activities. Also, provisions of Article 39 are not enforceable in the court of law by the virtue of them being Directive Principles of State Policy. Thus, a need for a stricter and more efficient law was felt. This resulted in the enactment of Child Labour (Prohibition & Regulation) Act, 1986.
CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986
The Act aims at banning child labour in some industries mentioned in the schedule and regulation of working conditions where employment of children is permitted. It also prescribes a penalty for the violators. The Act defines a child to mean any person below the age of 14. The Act also defines ‘establishment’ to cover all kinds of workplaces. The Act is divided into two parts: the first part prohibits child labour altogether and the second part regulates the conditions in the permitted areas. According to the act, a child cannot be asked to do overtime and should not be made to work from 7 pm to 8 am. In total, work hours should not exceed 6 hours. In the case of any dispute regarding the age of the worker, his birth certificate would be taken as a proof. The complaint against the cases of child labour can be filed by anyone. Under the Act a person who has employed a child needs to give a declaration containing details of the same to the inspector of the area in which the establishment is located. If a child to be working in a hazardous industry then the person who engaged him could be held liable for imprisonment for a term which shall not be less than three months but which may extend to one year, or with fine which shall not be less than ten thousand rupees but which may extend to twenty thousand rupees, or with both. The act, however, fails to define what hazardous means. The Act lists a total of 18 industries which are considered hazardous. It includes working as domestic help and in dhabas. The proposal to amend the Act has been approved by the cabinet in 2015. The proposed amendments will prohibit the employment of children below the age of 14 years in all kinds of establishments be it hazardous or not- hazardous. However, the children can work in their family enterprises and farmlands after school hours or on holidays. However, it will reduce the number of hazardous industries from 18 to 4. Currently, the prohibited occupations are: Any occupation connected with –
(1) Transport of passengers, goods or mails by railway;
(2) Cinder picking, clearing of an ash pit or building operation in the railway premises;
(3) Work in a catering establishment at a railway station, involving the movement of a vendor or any other employee of the establishment from one platform to another or into or out of a moving train;
(4) Work relating to the construction of a railway station or with any other work where such work is done in close proximity to or between the railway lines;
(5) A port authority within the limits of any port.
(6) Work relating to selling of crackers and fireworks in shops with temporary licences.
(7) Abattoirs/slaughter Houses.
There is no denying of the fact that child labour cannot be prohibited completely as of now. This can be attributed to poverty and over-population. Many a time, a child is the sole bread earner of the family. Thus banning child labour completely will drive such families to destitution. However, child labour does strip the children off their opportunities to get educated and flourish. They lose their childhood to work and responsibilities. The judiciary has acknowledged this in a number of cases.
In Peoples Union for Democratic Rights v. Union of India, the Supreme Court, held that construction works clearly constitute hazardous activities. In Labourers, Salal Hydro Project v. State of Jammu and Kashmir, the Court was forced to acknowledge that economic reasons exist for the prevalence of child labour in India. As long as there is poverty, child labour cannot be eradicated. In M.C. Mehta v. State of Tamil Nadu and others the Court observed,”…it is a stark reality that in our country like many others, children are exploited a lot.” The court provided for stricter liability and the increased quantum of compensation to be paid by the employers of child labours.
Child labour cannot be eradicated unless the vicious cycle of poverty is broken. The poor children, hungry and uneducated, work to feed themselves. They are exploited and paid far less wages than they should get. They lose their childhood to gross human rights violations. It is high time to take serious measures towards protection of children who are national assets and who will lead this country in the future. Children belong to schools and playgrounds, not factories and workshops.
 AIR 1982 SC 1473
 (1983)2 SCC 181
 AIR 1997, SCC 283