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The Working Children

“ One wonders why we need so many statutes to deal with a problem which all civilised nations recognise to be basic. The 1986 Act from a bare reading has done a patchwork job. It seems as if the legislature did not want to dismantle the regime of disparate provisions contained in different statutes. The problem is not complex to understand although difficult to resolve taking all factors into consideration. The Act is more in the nature of a symbolic recognition of a deep-rooted problem. Our own Constitution amply recognises this problem…”

India is home to the largest number of working children in the world. In large families with many dependants, the associated low income and low literacy situations, compels children to work out of economic necessity. The result is a low level of education and poor preparation for adult life. The available statutory provisions show that India has considered child labour a ‘necessary evil’ to bear with, albeit under a regulatory framework. 

The umbrella law, loosely speaking, is the Child Labour (Prohibition and Regulation) Act, 1986. It does not completely ban child labour, but only seeks to ‘protect’ working children. It specifically prohibits the employment of children in certain industries and leaves the scope for such prohibition in others. It also regulates the conditions of work where there is no such prohibition, and lays down enhanced penalties for contraventions. Under the Act any member of the public may also make a complaint to a Court of Competent Jurisdiction that children are being employed in contravention of the Act. The Act has been criticised for several reasons - that no minimum age is stated for occupations permitted to children, no provision exists for the education of working children, children working for families are outside the scope of legislation and the penal provisions are too dilute to work as deterrent. 

Prior to the passage of the 1986 Act, there were other legislations containing prohibitory provisions on child labour in specific industries. These include Indian Factories Act, 1948, Mines Act, 1952, Merchant Shipping Act, 1958, Motor Transport workers Act, 1951, Beedi and Cigar Workers Act, 1966, Apprentices Act, 1961 etc. and other legislations that regulate conditions in shops and establishments. 

Section 23 of the Factories Act 1948 says that no young person shall be required or allowed to work at any machine to which this section applies unless he has been fully instructed as to the dangers arising in connection with the machine and the precautions to be observed etc. Clause (d) of section 2 defines a young person as one who is either a child or an adolescent. Child is defined under clause (c) of the same section as a person who has not completed his fifteenth year of age. However, under section 23 of the Indian Contract Act, such child lacks the capacity to contract –presumption being that children lack capacity to form proper judgment.  One fails, then, to understand how instructions about the dangers of use of machine could be properly appreciated by the child to undertake the activity.  Apprentices Act, 1961 states in section 3, that a person who is less than fourteen years of age is not qualified to undergo the apprenticeship training. Anyone engaging a person in breach of this section is liable for punishment under section 30. Section 109 of the Merchant Shipping Act, 1958 states that no person under the age of fourteen years of age shall be engaged or carried to sea to work in any capacity in any ship except under conditions stated in the section are fulfilled.  However, the penalty for breach of the statutory mandate is a paltry fine of Rs.50/= only. Section 21 of the Motor Transport Workers Act, 1961 states that no child shall be required or allowed to work in any capacity in any motor transport undertaking.  Contravention of this provision entails a maximum sentence of upto three months and or a maximum fine of Rs.500/-. Then section 40 and 45 of the Mines Act, 1952 also contain prohibitory provisions as far as the engagement of children is concerned. Whereas section 40 stipulates that no person under the age of 18 years shall be allowed to work in any mine or part thereof, section 45 says that such persons shall not be allowed to be present in any part of the mine above ground where any operation connected with or incidental to any mining operation is being carried on. Exception is created only for apprentices not below the age of sixteen years subject to certain conditions. However, it is rather surprising that the penalty provided for breach of these statutory provisions in the Mines Act, is a fine upto Rs.500/= under section 68. Section 24 of the Beedi & Cigar Workers (Conditions of Employment) Act 1966 prohibits  anyone from engaging a child under the age of fourteen years in any industrial premises connected with the Act. Section 33 is the omnibus penalty provision which also covers this section and prescribes as punishment, a maximum fine of Rs.250/= for the first offence.

Section 15 of the Child Labour (Prohibition & Regulation) Act, 1986 modifies the penalty for some of the offences under different Statutes quoted above. Any person who is convicted, now, under the relevant provisions in connection with child labour as contained in Factories Act, 1948, Mines Act, 1952, Merchant Shipping Act, 1958 and Motor Transport Workers Act, 1961 is liable to be punished not under the said Acts but under section 14 of the present Act. The punishment under 1986 Act is slightly more stringent.

One wonders, why we need so many statutes to deal with a problem which all civilised nations recognise to be basic. The 1986 Act from a bare reading has done a patchwork job. It seems as if the legislature did not want to dismantle the regime of disparate provisions contained in different statutes. The problem is not complex to understand although difficult to resolve taking all factors into consideration. The Act is more in the nature of a symbolic recognition of a deep-rooted problem. Our own Constitution amply recognises this problem. Article 24 of the Constitution of India says that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.  Articles 39 and 45 also touch upon the subject. Article 39 inter-alia directs that the State shall, in particular, direct its policy towards securing that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength and that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.  Article 45 directs that the State shall endeavour to provide, within a period of 10 years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.

Under mounting pressure from developed countries - that nations like us should prohibit child labour, otherwise they would not trade with us in those areas where child labour is utilised – India has to take some hard decision in this regard in near future. When EU boycotted garments manufactured in Bangladesh it led to thousands of children manufacturing them losing their jobs and landing up with even worse jobs. We have to effectively use law to limit and define conditions under which children work. It is the duty of the State to ensure that the constitutional values as mentioned earlier be realised at the earliest. There is no reason why the State cannot ensure that children upto a certain age are provided their basic needs like food, clothing, medical facilities and proper education. The State cannot turn around and say that funds are a problem. Funds argument can only imply that the State is looking only at the present and ignoring the future. It is these very children who would constitute the workforce of tomorrow. At present, it would not be proper to prohibit child labour altogether, as that would land these children in delinquency.  The provision for minimum conditions relating to wages, compulsory education with vocational training, medical and health support, proper nutrition, housing facilities etc. for working children can help the said children develop properly.

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