INTRODUCTION
Child labor obstructs children’s access to education and the process of skill development, which is indirectly related to a nation’s development. Child labor is the result of deep-rooted socio-economic inequalities, poverty, lack of education, and other factors that force children from impoverished households to sacrifice their lives early and engage in labor work or unskilled jobs for meager pay. This leads to gross exploitation, underpayment, and violation of social rights. According to Government of India data, every eleventh child between the ages of 5-18 is engaged in some form of labor. Although labor laws are relatively better enforced in urban India, the rural areas lack protection for children. In recent times, child labor in urban areas has increased significantly due to mass migration in search of livelihoods, and there is also an increase in human trafficking of unaccompanied minors. The state has a constitutional obligation to provide children with childhood care and education until they turn six years old, and every child in India must have access to free education until the age of 14. The Child And Adolescent Labour (Prohibition And Regulation) Act, 1986 is the leading piece of legislation that prohibits child labor and was last amended in 2016. The author will analyze the key provisions of this Act to determine its effectiveness in implementation, as well as examine data on child labor reported over the past 10-20 years to assess the Act’s impact. The author will also examine key concepts, offenses, and definitions in the Act, as well as provide a brief analysis of the 2016 amendment. Finally, the author will conclude by presenting an overall analysis of the legislation, identifying any gaps, and suggesting viable solutions to improve child labor protection in India.
ANALYSIS OF KEY PROVISIONS CHILD LABOUR
The Child And Adolescent Labour (Prohibition And Regulation) Act, 1986[1], commonly referred to as the Child Labour Act, was enacted on December 23rd to specifically address and prohibit the engagement of children in all occupations, as well as the involvement of adolescents in hazardous occupations and processes. The Act includes various key provisions and offenses related to child labor, which are summarized as follows:
The Act defines important terms such as adolescent, child, establishment, and workshop in the context of child labor. The age of a child is determined based on the Free and Compulsory Education Act, 2009, unless otherwise specified.[2] Generally, a child refers to a person below the age of 14.
The Act establishes a Central Government Technical Advisory Committee to identify occupations and processes that could involve child labor, ensuring comprehensive coverage. It sets regulations for working hours, limiting them to three hours at a stretch and a maximum of six hours per day. Employers are obligated to report and register information about child workers in their establishments, promoting transparency and accountability.
Disputes regarding the actual age of a child are resolved by medical authorities if the inspector and the employer have differing views. Violations of the Act can lead to imprisonment for a minimum of six months, extendable to two years, along with fines. Exceptions are made for children working in family businesses after education hours.
Offenses related to Sections 3 and 3A of the Act are considered cognizable, allowing immediate action by the police without waiting for approval from a magistrate.
The Act establishes the Child and Adolescent Labour Rehabilitation Fund, which aims to support the welfare of these children and assist them in recovering from years of exploitation. The Act provides for minimum trial powers with designated magistrates and allows offenses to be compounded if appropriate compensation is provided to the victim or their family. The Act includes a schedule that identifies various occupations and processes involving children and adolescents, subject to the regulations outlined in the Act. This list can be updated as needed.
Overall, the Child Labour Act[3] plays a significant role in addressing and preventing child labor, with provisions for regulation, punishment, rehabilitation, and legal frameworks.[4] However, there are certain areas that could be strengthened, such as addressing income disparities and poverty, verifying the authenticity of age certificates, and reconsidering the compound ability of offenses to ensure greater accountability and deterrence.
CAUSES OF CHILD LABOUR LAWS
Child labor in India is driven by a combination of socio-economic factors and systemic issues. Here are some of the main causes:
1. Poverty: Poverty is a significant driver of child labor. Impoverished families often rely on the income generated by their children to survive. Lack of adequate resources pushes children into labor to contribute to the family income.
2. Lack of Education: Limited access to quality education, especially in rural areas, contributes to child labor. When children are unable to attend school or receive proper education, they are more likely to engage in labor to support themselves or their families.
3. Social and Cultural Factors: Certain social and cultural norms perpetuate child labor. For example, in some communities, it is customary for children to follow their parents’ occupation from a young age. This leads to children being engaged in labor-intensive activities.
4. Weak Enforcement of Laws: Despite the existence of legislation to prohibit child labor, enforcement remains a challenge. Inadequate implementation of laws and weak monitoring mechanisms contribute to the persistence of child labor practices.
5. Urbanization and Migration: Rural-urban migration and rapid urbanization lead to an increased demand for cheap labor. This creates a vulnerable situation where children from impoverished backgrounds are often exploited and forced into labor in urban areas.
6. Informal Sector: A significant portion of child labor occurs in the informal sector, where labor laws and regulations are often not effectively enforced. Industries such as agriculture, domestic work, and small-scale manufacturing employ a large number of child laborers.
7. Lack of Awareness and Social Stigma: Many families, especially in marginalized communities, lack awareness of the importance of education and the harmful consequences of child labor. Additionally, there may be social stigmas associated with sending children to school, particularly for girls or lower-caste children.
8. Demand for Cheap Labor: The demand for cheap labor, driven by economic factors, creates a market for child labor. Employers seeking to minimize costs often exploit children who can be paid less and are less likely to assert their rights.
Addressing the causes of child labor requires a multi-faceted approach, including poverty alleviation, improving access to education, strengthening enforcement of laws, raising awareness, and promoting social change.
CRITICISMS OF INDIAN LABOUR LEGISLATIONS
Indian labor legislation has faced criticism on several fronts. Here are some common criticisms:
1 Complex and Fragmented Laws: The labor laws in India are numerous, complex, and fragmented, making it difficult for both employers and workers to navigate and comply with them. The existence of multiple laws at the central and state levels creates confusion and increases compliance burdens.[5]
2 Rigidity and Lack of Flexibility: Critics argue that Indian labor laws are overly rigid, making it challenging for businesses to adapt to changing market conditions. Stringent regulations on hiring, firing, and contract labor create barriers to job creation and hinder business growth.
3 Limited Coverage and Informal Sector Exclusion: Many labor laws in India only cover workers in the formal sector, leaving a large portion of the workforce, particularly those in the informal sector, unprotected. This exclusion leaves millions of workers vulnerable to exploitation and denies them basic rights and benefits.
4 Inefficient Enforcement: Enforcement of labor laws in India has been criticized for being weak and ineffective. Insufficient resources, corruption, and lack of awareness hinder the enforcement of labor rights, allowing for widespread violations without adequate consequences for employers.
5 Compliance Burden on Small and Medium Enterprises (SMEs): The complex and onerous labor regulations disproportionately burden small and medium-sized enterprises (SMEs), which often lack the resources and expertise to comply with the extensive legal requirements. This can discourage entrepreneurship and impede the growth of SMEs.[6]
6 Lack of Harmonization and Standardization: The absence of harmonization and standardization across labor laws creates disparities and inconsistencies.[7] Different laws in different states often lead to varying compliance requirements, making it challenging for businesses operating across multiple jurisdictions.
7 Inadequate Protection for Workers’ Rights: Despite the existence of labor laws, critics argue that workers’ rights are not adequately protected.[8] Issues such as non-payment of wages, unfair dismissals, and lack of social security benefits persist, leaving workers vulnerable to exploitation and abuse.
CONCLUSION
The constitutional framework of India presents a progressive and promising approach towards children’s well-being and their future. According to this framework, the state has a responsibility to provide free and compulsory education to all children aged six to fourteen.[9] However, despite these provisions, the prevalence of child labor in India remains a significant issue, particularly in rural areas. The 2011 census reported that 10.1 million children out of a total of 259.6 million were engaged as either main or marginal workers. This indicates that early childhood care and education, especially in rural India, are far from becoming a reality.
In Indian law, children are considered incapable of understanding the consequences of their actions, and therefore, the Indian Penal Code of 1860 does not recognize any criminal liability for individuals under the age of seven. Despite this legal protection, child labor is still widely viewed as a societal evil. Factors such as demographic distribution, diversity, and migration from rural to urban areas in search of livelihood contribute to the persistence of child labor and trafficking. Many industries exploit innocent children under the guise of providing employment opportunities, evading law enforcement agencies. The lack of access to education, exacerbated by poverty, is a significant factor contributing to child labor and trafficking. Unfortunately, there is little legislative support or effective administrative measures in place to address these practical challenges.
The Child Labour Act sets an example in India’s child labor framework by providing a uniform definition of a child and adolescent. The act includes features such as prescribed education and restricted working hours to ensure that work does not interfere with schooling. It establishes Rehabilitation Funds and imposes a complete prohibition on child labor, with violators facing imprisonment for up to two years. These distinctive provisions help the government in its mission to protect children and their childhood.[10]
However, the act also has some shortcomings, as highlighted in this research paper. The practical disparity in income and livelihood often compels children to engage in labor to support their families. The act does not adequately address the need for administrative authorities to actively assist poor families, which could indirectly remove children from labor. Furthermore, the act still allows adolescent labor in hazardous work establishments. Although the 2016 Amendment Act reduced the number of hazardous occupations from 83 to three, there is a need to address potential misuse of this exemption by hazardous establishments.
Moreover, the act lacks provisions for the welfare and distributive justice of children. While its primary focus is on regulating and curbing unlawful child labor, the legislation could benefit from incorporating welfare provisions for children. Apart from specifying working hours, study hours, and age limits for work, the act does little to ensure the overall well-being of children. Therefore, despite its efficiency and broad scope, the legislation needs to bridge the gap between theoretical provisions and the actual situation of child labor in India. It should also consider the existing poverty and unemployment scenario, which directly contributes to children entering the workforce due to their families’ financial struggles. India has a long way to go before children’s rights and welfare are well-established and prioritized.
[1] The Child And Adolescent Labour ( Prohibition And Regulation) Act, 1986 (India).
[2] Constitution of India, 1950, Article 21(a).
[3] Child Labour (Prohibition And Regulation) Amendment Act, 2016(India).
[4] GOVERNMENT OF INDIA, PLANNING COMMISSION, NEW DELHI, ‘Report of the Working Group on Labour Laws And Other Labour Regulations’, https://web.archive.org/web/20140826171253/http://planningcommission.nic.in/aboutus/committee/wrkgrp11/w g11_rplabr.pdf (last visited 07th Nov., 2020).
[5] Bhatnagar, Subhash C. “Reforming Labour Laws in India: A Critical Analysis.” Economic and Political Weekly, vol. 37, no. 43, 2002, pp. 4411-4416.
[6] Jhabvala, Renana, and Ravi Srivastava. “Labour Regulation and Informality in India: An Analytical Overview.” Indian Journal of Labour Economics, vol. 50, no. 4, 2007, pp. 591-611.
[7] Mukhopadhyay, Swapna, and T. V. Sekher. “Labour Legislation and Protection in India: A Comparative Perspective.” Indian Journal of Labour Economics, vol. 52, no. 3, 2009, pp. 519-536.
[8] Mehta, Pratik Datta. “Labour Law Reforms in India: Balancing Flexibility and Worker Protection.” Indian Journal of Industrial Relations, vol. 48, no. 1, 2012, pp. 58-69.
[9] Constitution of India, 1950, Article 21(a).
[10] SUDESH KUMAR SHARMA, “Child and the Constitution: An Appraisal in Distributive Justice Perspective” 2 Supreme Court Journal 12(1986).
Author Bio
