This blog is written by Ishita Mehta 2nd year BBA LLB (Hons.)School of Law, Lovely Professional University.
“We are guilty of many errors and many faults, but our worst crime is abandoning the children, neglecting the fountain of life. Many of the things we need can wait. The child cannot. Right now is the time his bones are being formed, his blood is being made, and his senses are being developed. To him we cannot answer ‘Tomorrow,’ his name is today.”[i]― Gabriela Mistral
The children-The greatest gift to humanity. Impressionable and very important stage of human development is Childhood as it holds the potential to the future development of any society. All country links its future with the present status of its children and women. Children enrolling in any kind of work inhibits affects their fullest growth. Child labour a universal problem and a curse towards the society. The scenario of child labour in present trend is a pathetic one whether it is developing or developed country. And it is very much in picture in India, a developing nation. And sadly one of the home to the largest number of child labourers in the world.
If we choose a view-point at the top floor of any largest building and capture view of the ground below, it’s sure to get a fascinating landscape but at the same time equally sure to miss micro ugly realities hidden within. Such is the class disconnect in the present era that it is difficult to find even pure objectivity. But it’s a fact children’s sacrificed their childhood for earning food for their family as well as for his own. That deprives their potential and dignity, and too harmful to their physical and mental development.
Table of Contents
Article 24 of the Indian Constitution states that “no children below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment”[ii]. Article 24 vary from Article 23 in a sense as of even though Article 23 banned human trafficking and force labour, Article 24 aim is to protect the rights of the children being forced to do any hazardous work to earn money. The government has passed The Child Labour (Prohibition and regulation) Act, 1986[iii] for the implementation and protection of the Fundamental right which provides the rules for the protection, prohibition and regulation of Child Labour. At first, the age of children to work in any hazardous occupation is 14 but after amendment it has been increased to 18 years.
It is socio-legal problem and so needs to be treated with deterrent punishment. If compulsory education will be implement then we can get solution of four problems, namely: (i) Unemployment; (ii) poverty (iii) exploitation of the child and (iv) illiteracy. These things should be done by way of awareness programme not by strict law enforcing as because law can be made to stop the tradition, we the people must follow it. It is true that by making law we can restrict the tradition to a certain label but not as a whole.
There are constitutional and statutory provisions for abolishing child labour, but at the same time, the Indian judiciary through its activities is playing the most important role to abolish child labour from India
CONSTITUTIONAL PROVISIONS REGARDING CHILD LABOUR
There are several articles of Indian constitution that provide protection and provision for child labour[iv]:-
Article 15(3) – In article 15(3) of the Indian constitution it is stated the state is empowered to make special provisions relating to child but it will not violate the right to equality.
Article 21– This article states that “no person shall be deprived of his life or personal liberty, except according to procedure established by law”.
Article 24– This article simply states Prohibition of Employment of Children in Factories, etc. In article 24 it is stated that “no child below the age of 14 shall be employed in any factory or mine and should not be engaged in any hazardous employment” which can be considered as construction work, match boxes, and fireworks etc.
Article 39(e) – In this the State shall in particular, direct its policy towards securing the health and strength of the tender age of children are not abused and that citizens are not compelled by economic necessity to enter avocations inappropriate to their age or strength.
Major contributor by the legislation has made many laws from time to time to eliminate child labour in India, with the help of which child labour has been curbed. Like:
The Children (Pleading of Labor) Act, 1933–The act is about the abolition of child labor for improvement of the status of children. “In this Act by the fine against any parent, middleman, or employer the penalties have been called for, which is involved in child labour.”
The Employment of Children Act, 1938 –the main objective of this Act is to prevent and regulate the exploitation of child labour in workshops and other specified occupations. Child labour was also banned by this Act.
Factory Act, 1948–Through this act, the Indian government tried to adopt the provisions of the ILO and implemented the industrial code as the freedom of the workers in Indian conditions. It prohibits the employment of children below the age of 14th years. The person who has completed 14th years but has not completed 18th years can work in the factory, but he has been provided fitness certification by the surgeon.
Despite of making many laws and schemes for reducing child labour still the problem child labour is completely not finished. A complete ban on the Child labour may not be possible so Article 24 imposes partial ban on the Child labour. Poverty, lack of educational facilities, unemployment, social economic backwardness is some of the reasons behind Child labour. Children being enslaved, separated from their families, exposed to serious hazards and illnesses and/or left to fend for themselves on the streets of large cities are the worst forms of child labour, often at a very early age.
Article 45 is supplementary to Article 24 because if a child below the age of 14 years is not to be employed, he must be he must be placed in an educational institution. The Children(Pledging of Labour) Act,1933 followed by the Employment of Children Act, the first statutory act dealing with child labour after 1938 which was repealed by the Child Labour Act, 1986.The Child Labour Act was passed with the object of achieving two goals which are contradictory, i.e. Prohibition and Regulation of child labour which is not in conformity with Article 24 of Constitution and the Child Labour Act,1986 is in favour of regulation rather than abolition of Child Labour.
The Child Labour (Prohibition and Regulation) Amendment Act, 2016, amended the Child Labour (Prohibition and Regulation) Act, 1986.It has renamed the original act as the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986.The Amendment Act prohibits the employment of children below 14 years in all occupations. Further, the employment of adolescents (14 to 18 years of age) has been prohibited in hazardous occupations and processes and introduces more stringent punishment for the offenders by this Amendment Act.
|Imprisonment||6 months – 2 years|
|Fine||20000 – 750000|
|Repeated offenses(Imprisonment)||1 year – 3 years|
This amendment allows the child labour in “the family or family enterprises” or allows the child to be an artist in the entertainment industry but it is mentioned that children may work after school hours or during vacations only[v].
Inspite of plethora of legislative enactments and the pro-active role played by various agencies, child labour continues to be a major problem. A large number of children are exploited and deprived of what is due to them. It can be said that the negligence on the part of the relevant enforcement machinery under specific laws is the major issue to be addressed and cured. However, fortunately, the Indian Judiciary played a very significant role in promoting child welfare. It has taken the lead in protecting the child from exploitation and improve their conditions. Judicial mandate clearly demonstrates that right to education is necessary for the proper flowering of the children and their personality. The judiciary has even directed the states that it is their duty to create an environment for the child workers to have opportunities to grow and develop in a healthy manner with full dignity in consensus of the mandate of our Constitution.
It is the need of the hour to expand the machinery for enforcing the various laws on child labour and set free the young from the evil of child labour. The children freed from child labour should be entitled for rehabilitation benefits under various government schemes. There are many preventive laws on child labour but nothing can eradicate child labour unless there is awareness among parents and children, which will go faraway in saving the future of millions of working children in India. Thus, one and only possible way if government and the society would own it that this our responsibility to put an end to child labour in all its forms.
The judiciary has also played very crucial role augmenting the efforts of all concerned for elimination of Child Labour.
The Supreme Court in the case of People’s Union for Democratic Rights vs. Union of India observed that it is a clear breach of Article 24 of the Constitution to employ the children below the age of 14 in the construction work. The court has prohibited any kind of violation of Articles, 23 and 24 and has further laid emphasis on the observance of fundamental rights by private individuals and spoken strongly against any form of forced labour.
And The Hon’ble Supreme Court, in its landmark judgment delivered on 10-12-1996 in M.C Mehta Case, gave a major boost on encouragement of the efforts of various agencies working in the field of protection and elimination of Child Labour.
The Supreme Court directed in its judgment, among other things, to conduct a detailed survey of Child Labour in the entire country. On completion of the survey, an amount of Rs. 20,000- per child would be collected from the employer, who has employed Child Labour in hazardous occupations and processes, which will be used as a corpus fund for the Child Labour Rehabilitation-cum Welfare Fund to be set up at the District level.
The state is directed to ensure alternative employment to an able-bodied adult member of the family of the child worker, who would be withdrawn from the work or alternatively, contribute Rs. 5,000/- per child to the said fund. The child workers should be ensured education in the formal school, and the employer should be prosecuted for violating the provisions of the Child Labour (Prohibition & Regulation) Act, of 1986. In non-hazardous jobs, the child worker should be imparted education at the cost of the employer and the Government should ensure that the children do not work for more than 4 to 6 hours.
The above directions of the Honorable Supreme Court are based on Article 141 of the Constitution of India. The State in its true spirit following the directions of the Honorable Supreme Court and making all efforts to for elimination of Child Labour.
Child labour interrupts child’s education and cognitive development and also impact a child’s social development as they spent time doing labour instead of playing with peers in social play. Involvement in child labour has limited their social relevance to the immediate and larger society. Children sucked into the child labour industry as they completely stray from the educational route. They robbed of the knowledge and credentials required to land promising careers the one who don’t receive a standard education. As a result, they continue to work in menial, labour-intensive jobs long after they reach adulthood. The practice of Child labour has been going on for a long time and is the worst form of child exploitation. The consequences of child labour are not only limited to harming a child’s physical and mental health but also depriving him of basic rights as guaranteed by our constitution such as the right to education, development and freedom.
Though there is surfeit laws dealing with the child labour problem due to their faulty implementation by law enforcement agencies child labour practice is far from eradication. Child labour menace is very complex to overcome this problem it requires a multi-disciplinary approach. Awareness and participation of society is a must for complete eradication. Laws on child labour and Education should be implemented in a mutually supportive way as there is no complimentarily between child labour prevention and education laws. The object of law in this field should be given to rehabilitation rather than regulation as the main focus as in presents legislations deals merely with the prohibition and regulation of child labour. And also those who get service from child labour should be punished because it is their duty to refuse the service of child labour. It is suggested to give more focus on the implementation and enforcement of child labour laws and other laws meant for the protection of children as laws enforce through enforcing machinery are relatively ineffective.
The problem of child labour is quite rampant in India and the insufficiency of laws and their faulty enforcement has contributed to its prevalence. The study has proved that there has been a number of measures, acts, and policies have been introduced by State and Central governments to curb social evil. But, despite the efforts of the administration, child labour continues to prevail. It is clear that the mere introduction of laws and bans will not help in curbing the problem unless it is well supported by people or by creating awareness. This problem cannot be stopped altogether overnight. It can only be brought down gradually by taking strict measures to implement and enforce the laws. Although, it has been found that it is gradually reducing due to constitutional and legal provisions. Until the problem of child labour is tackled on all fronts this issue requires the attention of not only legislature, executives and courts but also the NGOs s social reformists, educational institutes and all those who care for the growth and development of the country.