Why the child labour law should not be amended

The proposed changes to the child labour law to allow children and adolescents to work for their families would be most retrograde and regressive, say Shinzani Jain and Paranjoy Guha Thakurta.

On May 13, 2015, a meeting of the Union Cabinet chaired by Prime Minister Narendra Modi approved amendments to the Child Labour (Prohibition and Regulation) Amendment Act, 2012, ostensibly to ensure that education of children in the 6-14 age group is not compromised.

However, certain exceptions laid down in the bill to amend the law legitimise children working for their family and in family enterprises. The dilution of the Act, apparently proposed to preserve the fabric of Indian society, would defeat the very purpose of the law that aims at protecting children from exploitative labour.

The Child Labour (Prohibition and Regulation) Act of 1986 provides for the prohibition of employment of a child in 18 specified occupations and 65 processes. The law also seeks to regulate the conditions of work for children in other occupations and processes.

The Right to Education Act was legislated to ensure free and compulsory education to all children in the 6-14 age group. One of the stated objectives of the bill to amend the law is to ensure that all children between the ages of six and 14 years are in schools rather than at workplaces. The bill, thus, aims to synchronise the two laws.

Further, the provisions of the 1986 Act are inconsistent with the conventions of the International Labour Organization. Convention 138 of the ILO (of which India is a founder member) provides that the minimum age for admission to employment or work shall not be less than the age of completion of compulsory schooling.

Convention 182 of the ILO adds that employment of all the children below the age of 18 years should be prohibited as these constitute the worst forms of child labour.

The main problem preventing the government of India from ratifying Convention 182 is that in India, as per the 1986 Act, persons above 14 years can work in hazardous occupations and processes. The amendments seek to remedy these inconsistencies.

In order to remedy the inconsistencies between the law on child labour and the Right to Education Act, the bill proposes to amend the definition of "child" to mean a person who has not completed 14 years or such age as specified under the RTE Act, whichever is higher. This definition, however, continues to differ from the definition of "child" in the Factories Act, 1948.

An "adolescent" has been defined as a person who has completed his 14th year but has not completed his 18th year. This definition too is slightly different from the definition of "adolescent" in the Factories Act.

The new bill imposes a complete ban on employing children, except in the following two cases:

Children allowed to help his family or family enterprise(s) provided that (i) such enterprise is not involved in hazardous processes and (ii) the work is carried out after school hours or during vacations.

Children are allowed to work in the audio-visual entertainment industry including in advertisements, films, television serials or any such other entertainment or sports activities except in a circus subject to (i) compliance with prescribed conditions and adoption of safety measures, and (ii) the work does not affect the school education of the child.

The amended bill prohibits the employment of adolescents in hazardous occupations and processes introduced.

The offence of employing a child or adolescent in contravention of the law by an employer is to be made a cognisable offence. It means that the authorities will now be allowed to file a first information report and commence investigations into the offence without a court order and arrest without a warrant.

Amendments have also been proposed in the penalty clause in the law. The punishment for the employers has been enhanced significantly. However, in case of parents, it is noted that their poor socio-economic conditions often compel them to sustain their livelihood through the labour of their children. Thus, the punishment for parents/guardians has been relaxed.

In cases where a child or an adolescent has been employed or permitted to work in any occupation or process in contravention to the statute, the offender will be punished with imprisonment of between six months and two years or a fine of between Rs 20,000 and Rs 50,000 or both. In the Act of 1986, the punishment prescribed was an imprisonment of between three months and 12 months or a fine of between Rs 10,000 and Rs 20,000 or both. The Act of 1986 allowed the employment of an adolescent in hazardous occupations or processes.

In a case of a second or a subsequent offence of employing any child or adolescent in contravention of the statute, the current amendment prescribes an imprisonment of between one year and three years, with imprisonment of between six months and two years.

In case of a first offence by parents or guardians, there shall not be any punishment. However, in case there is a second or subsequent offence, the penalty prescribed is a maximum fine of Rs 10,000.

The bill vests certain powers with the district magistrate to ensure that the provisions of the amended law are properly enforced. The constitution of a special Child and Adolescent Labour Rehabilitation Fund has been proposed for the rehabilitation of rescued children and adolescents.

While the amendments banning those below 18 from working in any hazardous industry and the enhancement of penalties have been welcomed, social activists have been extremely critical of the proposed provision allowing children below 14 years of age to work in family enterprises.

Here is how the government has justified its position in a note released by the ministry of labour and employment:

'… while considering a total prohibition on the employment of (a) child, it would be prudent to also keep in mind the country’s social fabric and socio-economic conditions. In a large number of families, children help their parents in their occupations like agriculture, artisanship etc. and while helping the parents, children also learn the basics of (the) occupations. Therefore, striking a balance between the need for education for a child and the reality of the socio-economic condition and social fabric in the country, the Cabinet has approved that a child can help his family or family enterprise, which is other than any hazardous occupation or process, after his school hours or during vacation.'

The Vellore Institute of Development Studies has termed the proposal to allow children and adolescents to work in family enterprises as “ill-conceived and ill-advised”. The amendments to the law go against the grain of the government’s declared policy of "total elimination" of child labour.

Tamil Nadu-based political parties such as the Dravida Munnettra Kazhagam, the Pattali Makkal Katchi have opposed the Cabinet's decision saying it would snatch away the children's right to education and jeopardise their future. The Pune unit of the Republican Party of India has threatened to launch an agitation against the decision.

Nobel laureate Kailash Satyarthi said this exception in the law could be misused unless the ambiguous term "family" is clearly defined. Speaking from personal experience, he said he had been attacked when he went to rescue a child labourer. The "owner" claimed the child was his nephew and that it was none of his business to "meddle in family issues".

Many believe that in the name of "sharing and dividing" work within a family, becoming apprentices and picking up "traditional skills", children can be exploited.

Despite the existence of the law, across the country, children are often made to work in poorly-lit and barely-ventilated rooms in slums and shanty towns moulding, stitching, embroidering, weaving rugs and carpets, making matchsticks and firecrackers and rolling bidis. They can be seen helping cooks in dhabas -- cleaning dishes and glasses, and cutting vegetables, among other things. Children working in farms are exposed to toxic pesticides and fertilizers.

Despite the fact that such work is clearly detrimental to a child’s physical and mental health, they are preferred over adult workers not only because they are paid less but also because they are considered submissive.

The fears that the particular provision of the law, if introduced, would be abused are not misplaced. In fact, it has been alleged that such a loophole in the law has been "deliberately" introduced.

In its 40th report on the Child Labour (Prohibition and Regulation) Bill, 2012, the Parliamentary Standing Committee categorically disagreed with the amendment and argued: 'The Committee (members) are not able to understand as to how the Ministry (of Labour and Employment) proposes to keep a check on children working in their homes. The ministry is itself providing loopholes by inserting this proviso since it would be very difficult to make out whether children are merely helping their parents or are working to supplement the family income.

'Further, allowing children to work after school is detrimental to their health as rest and recreation is important for fullest physical and mental development in the formative years besides adversely affecting their studies. The Committee (members) feel that the schools where these children study should conduct sessions for their parents and tell them about the needs of the children. The Committee (members) are of the view that there is no need to insert (the) provision … and the amended section be reframed to prohibit employment in all occupations where there is subordinate relationship of work and labour.'

Enakshi Ganguly Thakural,  co-founder of the HAQ-Center for Child Rights has argued that the proposed "exception is a way to keep the caste system intact". That way, a potter's son or a scavenger's son will remain in the same profession as his parents. 'A scavenger's child (will) continue picking up the middle classes' shit, especially since scavenging is not listed as hazardous occupation,' she told a television channel, asking why the "onerous task of preserving (the) social fabric and culture of this country is always on the back of women and children?"

Activist Shireen Vakil Miller, who worked with Save the Children, points out that the continuance of child labour is difficult to contain as several children work in the unorganised sector. "There is a social sanction to employing children. We don't think of it as labour, or of the abuse that is inherent," she added.

Sarah Farooqui, editor, Pragati and a manager at the Takshashila Institution, says that over the last decade, the number of child workers in India have plummeted from 12.6 million to 4.3 million because of stepped up enrollment in schools. With the  proposed amendment, education, although legally mandated, can easily become an "option" and not a "compulsion", especially for girl children among whom there is a relatively higher dropout rate in schools. In other words, the proposed amendment to the law could perpetuate "informalisation" of child labour.

The other big problem with the amendments approved by the Union Cabinet is that these fail to comprehensively differentiate between hazardous and non-hazardous occupations. The standing committee opined that the labour ministry had not made any independent efforts to identify hazardous occupations but copied the list haphazardly from the Factories Act.

The Child Labour (Prohibition and Regulation) Act of 1986 listed 16 occupations and 65 processes as hazardous. The list of hazardous occupations has now been reduced to: mines, inflammable substances or explosives and hazardous processes as mentioned in Clause (cb) of the Factories Act.

The standing committee observed that 'adolescents might be employed in industries which are apparently non-hazardous or works that are carried out at homes and thus not covered under the above schedule. For example, working as domestic (helpers) … does not fall under the category of hazardous occupations but in the case of adolescents it could turn out to be both hazardous and traumatic due to the treatment meted out to them by their employers. The exploitation and cruelty, in some cases, of the employers can affect health, safety and morals of the adolescents albeit working in a non- hazardous occupation.'

The limitations in defining hazardous activities give rise to genuine concerns that adolescents in the 14-18 year age group can now not only be employed in the occupations and processes that had been added to the schedule after 1986, they can also be employed and engaged in many new kinds of extremely hazardous occupations.

The standing committee has suggested that the meaning of hazardous processes be reviewed and widened to include all those processes that may jeopardized heath, safety and morals of the adolescents.

Child labour has an intrinsic connection with child trafficking. Trafficking of children takes place to engage them in menial work in households. They are also made to beg, assist drug peddlers and sexually exploited.

When asked by the standing committee why the ministry of labour and employment has not dealt with the issue of child trafficking in the bill, officials responded by saying these issues came under the jurisdiction of ministry and women and child development and the ministry of home affairs (which deals with criminal offences).

The committee harshly criticised this response, saying its members "deplore the causal manner" in which the labour ministry replied on a sensitive issue. It observed that in urban areas, the number of children begging at traffic signals or selling various goods or working as rag pickers or as domestic helpers, does not seem to have come down. It called for a "comprehensive strategy" among different government ministries and departments to tackle the problem of child labour.

The new law is proposed to be called the Child and Adolescent Labour (Prohibition and Regulation) Act. But before the law is changed, both houses of Parliament will have to approve the amendments proposed.

India is home to 4.9 million child labourers, according to the 66th Round of the National Statistical Survey Organisation done in 2009-10. This number had stood at 12.6 million, according to the 2001 census.

A number of government schemes exist to benefit children and keep them in school, notably, the mid-day meal schemes. But despite such schemes, the problem of child labour has not gone away but persisted and is far from being eliminated.

Despite the recent rise in enrolment, millions of children are still not in school. Given this reality, we need to ask ourselves certain basic questions. If a child is allowed to work in a non-hazardous industry, will she or he also be able to go to school? Will her engagement in both education and employment not be physically and mentally taxing?

Kailash Satyarthi (above) argues that children are labourers not because they are poor. It is the other way around, he says. They are poor because they are labourers as children.

The Nobel Laureate, however, appears to have modified his position. He said he is not opposed to the contentious amendment which allows children under the age of 14 to work in family-run enterprises so long as the government restricts the definition of "family" to parents or legal guardians and the work does not affect the child's health, education and leisure time.

This is what he stated: "Children help their family and they also learn skills from their parents. Our condition is simple and clear that this is 'help', not an earning, and must not be at the cost of the child's education, health and free time. Children everywhere in the world — even from rich families — visit their parents' workplace in their free time and learn skills…But there should be no ambiguity. We want the government to define 'family' clearly, which should mean parents or legal guardians. This should not be left open to interpretation. Secondly, the government also needs to define the employer-employee relationship under the Act."

The Narendra Modi government should immediately withdraw the amendments that have been proposed to change the law to allow children and adolescents to work for their families. Such a change in the law would be most retrograde and regressive.

Photographs: Reuters