Critical Analysis of the Child Labour(Prohibition and Regulation) Amendment Act 2016

Author – Sohini Chatterjee

INTRODUCTION

“There can be no keener revelation of a society’s soul than the way in which it treats its children.”- Nelson Mandela, the former President of South Africa.

One cannot emphasize more on the fact that children are the most crucial and integral part of the society or the human civilisation at large. They are the true reflection of the ever expanding nature of the Universe and God’s faith on humanity.  They are the best creation of humans. Children are persons who will grow up to become the hope and light of many. They are like the saplings of Banyan trees which if nurtured well will become life sources to many more and a giver and protector of others.

DEFINITION OF CHILD LABOUR

Child labour is a very ancient and deep rooted problem, especially the third world countries like India. Before going into the complicacies of the matter some simpler aspects should be looked into first. The query that arises is “What can be the definition of ‘child labour’?”; “Can a ‘working child’ be called a child labour?” These are the basic distinctions that need to be addressed before anyone delves deep into the matter. We know there are many nations which give us a diverse set of race, culture, and customs and thus give a diverse set of laws. Well laws are not that diverse, the range of diversity is pretty low in this case. For example, the definition of theft is pretty much same everywhere, but the diversity or the difference comes when it comes to the punishments that are given for an act. Some countries may award menial punishments or it might be proportional to the degree of the theft committed. There are some countries which might even award the strangest or harshest punishments for theft giving a blind eye to the degree of the act committed or the harm that was meted out.

 Similarly the definition of a ‘child’ may vary from country to country. For our purpose we will be considering the definition prescribed in Indian laws. But there is slight problem regarding that. In India there is no consistency among the laws regarding the definition of a child. According to the 1989 United Nations Convention on the Rights of the Child, a child is an individual who has not attained the age of 18 years. “In India, different laws define the words ‘child’ and ‘minor’ differently.”[1]

“As per Section 2(ii) of The Child Labour (Prohibition and Regulation) Act, 1986 – a child is defined as a person who has not completed his fourteenth year of age.”[2]

There are other laws around the child rights such as juvenile justice, marriage and trafficking that have variable definitions of minimum age.

The Plantation Labour Act 1951 has separate definitions for child, adolescent and adult. The Section 2 of the Act provides for such definitions.

“Section 2: Definitions…

• “adolescent” means a person who has completed his fifteenth year but has not completed his eighteenth year
• “adult” means a person who has completed his eighteenth year
• “child” means a person who has not completed his fifteenth year”[3]

According to Section 2(c) of, The Motor Transport Workers Act 1961, “ (c)“child” means a person who has not completed his fifteenth year”[4]

But The Beedi and Cigar Workers (Conditions of Employment) Act, 1966 provides for a different definition of a child. The Section 2(b) of the Act says, “‘child’ means a person who has not completed fourteen years of age”.[5]

Furthermore, the matrimonial laws such as Prohibition of Child Marriage Act, 2006 do nothing but add to the confusion. According to Section 2(a) of the Act, “ ‘child’ means a person who if a male, has not completed twenty one years of age, and if a female, has not completed eighteen years of age”.[6]

CRITICAL ANALYSIS OF CHILD LABOUR ACT 2016 AMENDMENT

On July 19, 2016 the Rajya Sabha passed a Bill to amend the child Labour (Prohibition and Regulation) Act, 1986, which can soon be placed before the Lok Sabha for its final enactment because the ‘Child and Adolescent Labour (Prohibition and Regulation) Act.
the engagement of youngsters below the age of 14 is altogether prohibited by the amendment, in occupations and processes. This is to be done in order that they’re ready to enjoy their fundamental right to education under the proper right of the children to, Free and Compulsory Education Act of 2009.
Further, it extends to hide adolescent children within the 14-18 age bracket , which number about 32.3 million consistent with the 2011 census for 15-19 age bracket . The Bill also makes engaging child labour a cognisable offence, punishable by imprisonment for a term of not but six months and up to 2 years, or by a fine of not but Rs 20,000 and up to 50,000 or both.
Although the Bill abolishes all sorts of child labour to enable children to enjoy their right to education up to 14 years, it also introduces a proviso allowing children of up to 14 years to figure after school hours to assist the family in fields do home-based work or add a forest.
Even as it extends the Act to hide adolescent children, all it does, in effect, is benefit a little number engaged in certain specific sorts of child labour.
Why was the Law Amended?
India’s law on child labour has been amended to make sure that

• Education of youngsters between the age bracket of 6 – 14 years isn’t compromised and
•  The law is brought in line with the proper to Free and Compulsory Education Act, 2009 (“Right to Education Act”). As a results of the enactment of the kid Labour (Prohibition and Regulation) Amendment Act, 2016 (“2016 Amendment Act”), the kid Labour (Prohibition and Regulation) Act, 1986 is now re-titled because the ‘Child and Adolescent Labour (Prohibition and Regulation) Act, 1986’ (“Child Labour Act”), so as to reflect its expanded scope and coverage.
  India may be a signatory to the ‘United Nations Convention on the Rights of the Child’ which aims at protecting the interests and rights of youngsters.

Although, the International Labor Organization has enacted Conventions like the Minimum Age Convention, 1973 and Worst sorts of Child Labour Convention, 1999 with the target of eliminating child labour, India has not yet ratified the aforementioned conventions

Important Features of the Amendment Act 2016
The important revisions to the kid Labour Act as a results of the 2016 Amendment Act are as follows:
1. Definition of ‘child’: The 2016 Amended Act has brought the law in sync with the proper to Education Act by amending the definition of ‘child’ to mean an individual who has not completed 14 years or such age as specified under the proper to Education Act, whichever is higher. This definition however continues to stay different from the definition of ‘child’ as per the Factories Act, 1948.
2. Definition of ‘adolescent’ introduced: ‘Adolescent’ has been defined to mean an individual who has completed his 14th year but not completed his 18th year. Definition of ‘adolescent’ as per the Factories Act, 1948 is however slightly different from this definition.
3. Prohibition of kid labour: An entire ban has been imposed on employing children, except within the following two cases:

• Children are allowed to assist in his/her family or family enterprise(s) as long as (i) such enterprise isn’t involved in hazardous processes and (ii) the work is administered after school hours or during vacations.
• Children are allowed to figure within the audio-visual show business including advertisement, films, television serials or any such other entertainment or sports activities except circus subject to (i) compliance with prescribed conditions and adoption of safety measures, and (ii) the work doesn’t affect the varsity education of the kid .
  4. Prohibition on employment of adolescents: New provisions which prohibit employment of adolescents in hazardous occupations and processes have been introduced.
  5. Child labour made a cognizable offence: Any offence committed by an employer which is punishable under the kid Labour Act has been made a cognizable offence. Accordingly, the authorities can file a primary information report and commence investigations into the offence without a writ and may arrest without a warrant.
  6. Punishments for contravention enhanced: While the punishment for employers has been significantly enhanced, the punishment for folks / guardians has been relaxed.
  7. Punishment for parents/guardians relaxed: There shall not be any punishment just in case of a primary offence by parents/guardians. just in case of a second and subsequent offence, the penalty prescribed may be a maximum fine of Rs. 10,000 (approx. USD 150).
  8. Powers of District Magistrate: Powers are vested with the District Magistrate to make sure that the provisions of the amended law are properly enforced.
  9. Constitution of child and Adolescent Labour Rehabilitation Fund: Provision has been made for constitution of a special fund by the acceptable government in every district or two or more districts, for rescue and rehabilitation of youngsters and adolescents.
  10. Compounding of offences: Provision has been made for compounding of offences on application made by the accused to the District Magistrate.
  11. Inspection and Monitoring: Provision has been made for periodic inspection and monitoring by the acceptable government of places where employment of youngsters is prohibited and unsafe occupations or processes are administered.

Analysis

India has taken a big step towards prohibition and eradication of the social evil of child labour which has consumed the society to an outsized extent. The 2016 Amended Act has now been brought in sync with the proper to Education Act. Although the amended law instils some amount of hope and confidence in those vouching for the betterment of youngsters, the impact and reach of the law is yet to be witnessed. Given the magnitude of the matter and therefore the complexities involved, proper enforcement of the law will need to be ensured by the authorities. Mere enactment of the law wouldn’t suffice unless it’s amid a variety of other measures and conducive conditions to eradicate child labour. These are the challenges which are posed by the Amendment Act of 2016:

1.  During a move to strike a balance between the necessity for education of youngsters and therefore the reality of socio-economic conditions in India, the govt has carved out certain exceptions to the ban on engaging/employing children by allowing children to assist family or family run enterprises. Such an exception could lead on to exploitation of youngsters in industries where the activities could also be outsourced to home-based units. Hence the exception paves way for employers to require advantage of “family enterprises” to use child workers. In other terms, activities which were prohibited could now occur under the disguise of ‘permitted exceptions’. Thus the exceptions permitting certain occupations outside school hours may have potential loopholes which could increase the vulnerability of kid workers.
2. Although the amended law states that children could also be permitted to figure in family or family run enterprises only ‘outside school hours’, there’s no authority to see nor features a mechanism been devised to make sure that these permitted activities aren’t hindering or affecting the education of youngsters .
3. The 2016 Amended Act has significantly reduced the list of hazardous occupations for youngsters from 83 to incorporate only (i) mining, (ii) explosives and (iii) other occupations mentioned within the Factories Act, 1948. Hence, various works including add chemical mixing units, cotton farms, battery recycling units, brick kilns, are dropped from the list of hazardous activities and there doesn’t seem to be valid justification for removal of any of those activities.
4. Rather than imposing stricter penalties and enforcing punitive actions, the amendment has relaxed the supply with reference to punishment for folks and guardians who contravene the law, which earlier, was an equivalent as that for employers.
5. The amendment doesn’t provide for any steps/measures to sensitize employers, parents and society to make sure accountability just in case there are violations.

Do children really benefit?

Being insensitive to the challenges faced by the foremost deprived castes and communities, the amendment defeats its very purpose – enabling children to enjoy their right to education.
By justifying in law the participation of youngsters in work before and after school hours, the Bill denies them the time and space to develop and grow as citizens. Choices and opportunities that children from affluent families enjoy are not given to them. Existing inequalities and discriminatory practices in society will be fostered by the existence of such a proviso.
It contravenes the equitable right of all children to a childhood and therefore the ir entitlements to measure a life with dignity as guaranteed by the constitution and the the UN Convention on the Rights of the child, to which India may be a signatory.
The amendment to the Act should have instead enabled children to interact in activities, before and after school hours that foster their active participation in class as a student and enhances their overall self-esteem and dignity.

CONCLUSION – A Wasted Opportunity

Addressing the complex issue of releasing adolescent children from work requires a whole-hearted legal framework and not a token effort to satisfy an international obligation.

Thanks to the clause allowing children to work after school hours “in the family” and rationalising adolescent child labour by law, Indian children would once again lose their battle for a life of dignity and freedom.

Indeed, it is a lost opportunity to provide justice to the most marginalised children in India’s democracy.

It is a shame that our parliamentarians have not risen to the occasion and opposed the proviso for allowing children to work after school hours and genuinely release all children, including adolescents, from the labour force. Ending child labour once and for all and making child labour part of India’s history still remains a mirage.[7]

Hence, to summarize, the outcome of the amended law would not just depend on the existing legislative framework, but also on various other factors such as the reforms and measures that the government subsequently adopts to address the issue and the speed at which such steps are implemented/enforced. A holistic approach will have to be adopted to address all the direct and indirect factors that contribute to the social evil. Multiple ministries, agencies and private sector stakeholders will have to join hands together to combat this social evil.

REFERENCES

1. Shubhomoy Sikdar- “Who is a child?”– The Hindu https://www.thehindu.com/news/national/who-is-a-child/article3528624.ece accessed on 20^th May 2021
2. The Child Labour (Prohibition and Regulation) Act, 1986
3. Shantha Sinha- “The New Law Banning Child Labour is No Ban At All ”- The Wire  https://thewire.in/law/unveiling-the-facade-of-the-child-labour-act accessed on 21^st May 2021
4. Nishith Desai- “Indian Laws on Child Labour Prohibition Revamped” https://nishithdesai.com/information/news-storage/news-details/article/indias-law-on-child-labour-prohibition-revamped.htm – accessed on 21st May 2021 
5. The Plantation labour act 195
6. The Motor Transport Workers Act, 1961
7. The Beedi And Cigar Workers (Conditions of Employment) Act, 1966
8. The Prohibition of Child Marriage Act, 2006
9. International Programme on the Elimination of Child Labour (IPEC)-“What is child labour?” https://www.ilo.org/ipec/facts/lang–en/index.htm >- accessed on 21^st May 2021
10. International Programme on the Elimination of Child Labour (IPEC) , Campaign and advocacy “The worst forms of child labour” <https://www.ilo.org/ipec/Campaignandadvocacy/Youthinaction/C182-Youth-orientated/worstforms/lang–en/index.htm>- accessed on 22^nd May 2021
11. “Study of child labour in Bombay”, National Institute of Public Co-operation and child development, New Delhi, 1978(unpublished).
12. Burra, Neera, (1988), “Where Children are cast in Misery’s mould”. The Hindustan Times Delhi Edition February 14 P. 5.
13. Kulshreshtha, J.C. (1994), “Indian Child Labour”, Uppal Publishing House, New Delhi P. 30
14. Chandra, Suman (1998), “Problems and Issues of Child Labour”, Social Action, Vol. 48, JanuaryMarch P.27
15.  Shodhnagan pdf “Child Labour”, chapter 9 pg 81       
16. Report of committee on child labour 1979, P. 10
17. Manmeet Singh, “Right to Education” <http://www.legalservicesindia.com/article/1925/Right-to-Education.html>- accessed on 22^nd May 2021

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[1] Shubhomoy Sikdar- “Who is a child?”– The Hindu <https://www.thehindu.com/news/national/who-is-a-child/article3528624.ece> accessed on 20^th May 2021

[2] The Child Labour (Prohibition and Regulation) Act, 1986

[3] The Plantation labour act 1951

[4] The Motor Transport Workers Act, 1961

[5] The Beedi And Cigar Workers (Conditions of Employment) Act, 1966

[6] The Prohibition of Child Marriage Act, 2006

[7] Shantha Sinha- “The New Law Banning Child Labour is No Ban At All ”- The Wire  <https://thewire.in/law/unveiling-the-facade-of-the-child-labour-act> accessed on 21^st May 2021