CRITICAL ANALYSIS OF IMPLEMENTATION OF CHILD AND ADOLESCENT LABOUR (PROHIBITION AND REGULATION) ACT, 1986
Author- Divya Omer
Amity Law School Noida
In countries like India, where the law of equality exists, then why children die while working in factories, agriculture, mines, etc.? The issues like poverty, illiteracy, unemployment, hunger, etc. all have forced the children to enter into the labour force. Child labour is considered as very cheap and easy labour. We will see that it is society and evils of the system that force the children into labour. They are not born as labour. Childhood is a very important stage for children as it helps them in their growth and development for their brighter future. If we picture, at one handsome child are enjoying their life full of happiness, living their dreams, fulfilling their wishes, getting a parent’s love and care, etc., and on the other hand, there are children who are physically working for the long duration of time without any proper break, they are not getting any kind of healthcare, deprived of their childhood life, dignity, self-respect, scolded, and beaten up by their employers, etc. Child Labour is work that harms children mentally and physically both and it keeps them away from attending school.
The research paper portraits mainly on the flaws of Child and Adolescent Labour (Prevention and Regulation) Act, 1986 and government policies and listed down the actions proposed and implemented by the Indian Government to help the children and adolescents rescued in child labour, and what are the initiates taken by the government for the welfare of families of the rescued children. I also have mentioned the schemes introduced by the government for the safety and well-being of children. This paper has also mentioned the misuse of the provisions of the act by employers, where the legislation has failed to take steps for the regulations. It has also mentioned the importance of education for children and how it is interlinked with child labour and how the government is focusing on giving free and compulsory education through schemes. In 2017, India has ratified two core conventions for Child Labour free India of ILO Conventions 138 (admission of the age of employment) and Convention 182 (the worst forms of child labour). The ratification of these two conventions will cover 99% of children by convention 182 and convention 138 will cover approximately 60% to 80% of the world’s children population.
Keywords: CRY, DNO, NCLP, POCSO
Today, we are having so many issues like global warming, food security, overpopulation, gender equality, water scarcity, etc. Child labour is one of the problems faced by developing and developed countries today. But we will see that this is a severe issue for developing countries more because mostly children belong to poor families who require money to fulfill their daily needs. Child labour is found in rural areas more. As per census 2011, one in every 11 children is working in India between 5 and 18 years of age. In which 80% of child labour is working in rural areas. The gap, which is growing between rich and poor has forced millions of children to work instead of going to schools. Children under the age of 14 years are forced to work for 16 to 18 hours daily in the extreme temperature, and they are not given a proper facility which affects their health causing malnutrition, weak eyesight, mental, and physical injuries, their growth, and development stops, etc. It violates both their protection and rights. It has been seen that adults are jobless and children are being employed. According to the UN’s ILO report, today 188 million people are unemployed around the world. 
According to ILO, today in the world there are 218 million children between 5 to 17 years being employed. In which 152 million children are victims of child labour (among them 73 million are in hazardous work). India is the second-largest country for child labour, Africa being first with 72.1 million child labour. If we check the data of eliminating child labour from 2012 to 2016, progress is very slow from 10.6 % to 9.6 %. 69% of Children (15 – 17 years old) who are working in hazardous work perform unpaid work within their family unit. ILO wants to end child labour by 2025. In India, according to the report of an investigation by Reuters in 2016, states like Bihar, Jharkhand, Andhra Pradesh, and Rajasthan, which are producing mica found that children are picking minerals, and they are not only affecting their health but also they are dying under unregulated crumbling mines. In Delhi, there are 1 million child labours alone. According to CRY, in India, the overall decrease in child labour is only 2.2% year on year, over the last 10 years. But in urban areas it has increased by more than 50%. Every year 12 June is considered as world day against child labour to remind every citizen, government, and organization there is a crucial need of eliminating child labour and decides what actions should be taken to control situations.
REVIEW OF LITERATURE
A number of concepts contribute to the theoretical underpinnings of my study. Within the “critical analysis of the implementation of child and adolescent labour (prohibition and regulation) act, 1986”, I begin with an initial discussion about child labour, what are its causes and consequences. Then I mentioned the current scenario of child labour in India. Child labour is a global problem. It harms children’s mental and physical development, spoils their childhood life, limits educational opportunities, etc. These children grow without education and lack of skills. At the time of earning money, they are incapable to get employment, so they sent their children to work. Like this, the cycle of child labour and poverty continues. Child labours are found in carrying heavy loads, working on farms, mines, brick kilns, garbage dumps, doing domestic work for long hours, etc. India is one of the countries where the largest numbers of child labours are employed. I have mainly focused on the implementation of the provisions of the act. In this act, the scope of the adolescent has been introduced. Children who are below the age of 14 years are not allowed to work in any work. They can help in the family enterprises’ work, the film industry, and sports activities. Research has given importance to the right to education, and how it is interlinked with child labour. Adolescents are prohibited to work in hazardous work. I have also mentioned the amendments and flaws in the act. I have also addressed the government policies and measures taken by the government to control and restrict child labour. For the rehabilitation of rescued children from work, the government has introduced rehabilitation of the child and adolescent fund. Under this fund, children are given proper facilities like education, vocational skills training, food, health checkups, etc. I also have mentioned schemes proposed and implemented for the welfare of rescued children’s families. India has ratified many conventions and promises internationally to end child labour. We need to bring change in society for the safety and welfare of our children.
For analysis, this study is based on mainly doctrinal research. The data has been collected through government reports, published articles, previous research studies, information available on the internet, newspapers, etc. The researcher has tried to find flaws in the provisions of the act, government schemes, facts, and figures regarding the children involved in such occupations, some case laws, causes, and the outcomes of child labour and on the current scenario of child labour in India.
OBJECTIVES OF STUDY
The objectives of the study are –
- To find out the situation of children working in India.
- To find out the origin and outcomes of child labour.
- To analyze the measures taken by the government to control and eliminate child and adolescent labour in India.
- To do a critical analysis of Child and Adolescent Labour Act.
- To suggest remedial measures to solve the problem of children working in India.
MEANING OF CHILD LABOUR
Child labour is a practice in which children are engaged or employed in any work that deprives their childhood of them and which is deleterious to their growth and development. Such type of work can be legal or illegal, and children can be paid or unpaid. Children are working in poor conditions for a very long duration of time and are not able to take care of their health which leads to diseases. This type of work interferes with children’s capacity to take part in school and participate in other activities that are required for their skills development and growth.
Not every occupation includes child labour such as children who are helping their parents in household work, in the family profession, or earning money after school hours or throughout school vacations. It helps in child development and growth.
CAUSES OF CHILD LABOUR-
Firstly, in many countries, children are considered as a helping hand in their families. There is an increase in the percentage of unemployment and underdevelopment due to famine, so parents send their children to work for fewer wages of jobs which will fulfill their daily basic needs (as they cannot afford studies for their children). Secondly, although, there are many laws for the prevention of overpopulation but due to poor family planning, there is an increase in the population every year, which leads to an increase of the rate of unemployment. Also, there are limited resources so all children are not able to get access from the resources becoming one of the reasons for child labour. Thirdly, illiterate parents think more hands to help in bringing more income, so, they sent their children to work in plants, agricultural work, stores, etc. Also, the rate of unemployment is increasing, so they think instead of spending lots of money on studies, they can be sent to do some work which will bring money. Parents neglect the health and safety of their children. Fourthly, children are considered as cheap labour- so many companies, factories, and shopkeepers prefer to employ children rather than adults, so that they have to pay less to them, and they can be used for profit maximization. Also, there are fewer chances of theft, greed, or misappropriation of money, etc. Fifthly, some parents who are not much educated, don’t want to work anywhere and don’t have any other support for their living being, they force their children to beg on the roads, so that, they can gain money from the people. Sixth bonded labours- to pay debts of the family children work at their early ages due to which they are unable to get the proper meal which affects their health which leads to various diseases. Seventh, every profession has different needs, for example, like in the business of making bangles, they require delicate and soft hands rather than rough hands of an adult, so they prefer children for this type of work. Eighth, in many areas, there are no proper educational facilities available due to which poor children don’t get the education. Some parents don’t send their daughters to schools, and in many places where schools are far away, parents don’t send their children to study.
EFFECTS OF CHILD LABOUR
It has many effects firstly, children remain illiterate because they fail to get a necessary education, and due to which they have very limited opportunities for a good job. As they lack behind to get basic skills so, they face many problems to overcome their daily life challenges. They are unaware of their rights like the right to life, right to freedom from torture, right to privacy, right to special care and protection if you cannot live with parents, etc. Secondly, it leads to health issues because of poor working conditions and undernourishment. Children work in dangerous and hazardous jobs that lead to injuries, even death. Thirdly they are not able to get parental care. Fourthly, children who are abducted have no protection, so employees have full control over them. Children are scolded and beaten up by their employers due to which their growth and developments stop. Fifthly, it ruins their childhood as they are engaged most of the time in working. They miss to enjoy all the experience and they are not able to play with their friends and make memories. Sixth, they are exposed to sexual exploitation, bullying, and they have to work for a long duration of time which leads to physical and mental injuries. They are not emotionally developed and they are in depression also. Seventh, there is an increase in black money in the market and also there is an increase in tax.
ANALYSIS OF IMPLEMENTATION OF CHILD AND ADOLESCENT LABOUR (PROHIBITION AND REGULATION) ACT, 1986
Earlier children below the age of 14 and 15 years were prohibited to work by various acts, but there were no provisions to prohibit certain occupations and processes where children should not be allowed to work, and no rules and regulations were there to regulate the working conditions of these children. So, to achieve this objective Child Labour (Regulation and prohibition) Act, 1986 was introduced. The bill was introduced to prohibit the employment of children who have not completed their age 14 years in certain occupations and processes and to regulate the state of children working in areas where they are not banned to work. It lays down punishments for the employment of children who violate any provision of this act; it lays down procedures to decide for any change in the schedule of banned occupations and processes and to bring uniformity in the definition of the meaning of ‘child’.
In 2016, the central legislature made alternations in the provisions of the Child Labour act, 1986, and made the amendments effective from July 20, 2016. The title of the Child Labour Act is changed to the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986. As there were no provisions for the adolescent, so for the first time they have introduced the concept of an adolescent in this act. The definition of an adolescent is added in section 2 of the act. “Adolescent” means a person whose age is between 14 – 18 years. “Child” is defined as a person who has not completed the age of 14 years or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009 whichever is more. It does not take into provision of the Juvenile Justice (Care and Protection of Children) Act, 2015, where the age of a child is defined as “below 18 years”. India is being a signatory to UNHRC, so it should have implemented its provisions, where article 1 of UNHRC says, a child means a human being, who is below the age of 18 years. So here the act has failed to determine the age of the child.
To give more light to the Right to Children to Free and Compulsory Education Act, 2009, there is a complete prohibition on employment of children, who are below 14 years of age in all occupations and processes, whether the work is hazardous or not, so that, they can get primary education. According to article 21A, the state will provide free and mandatory education to all the children, who are between the age of 6 to 14 years. And article 45 also endeavours for the state to provide early childhood care and education until they complete the age of six years. The legislation has made mandatory for private schools to allocate 25% of the seats for the children from disadvantaged groups and physically challenged children. More than 20 lakh seats are reserved for children from weaker sections in private schools every year, but if we check data only 20% of them get filled. Schooling and child labour are linked. According to ILO policies, it says we should invest in early childhood development, care, and pre-primary education, the school should reduce or eliminate their fees, should provide mid-day meal in schools should improve school access and school quality. Kailash Satyarthi says that if we improve the Quality of education in schools, then parents would send their child to school instead of work. They would like to invest money in studies because they will see the return that their children are getting benefits and further opportunities for their brighter future.
Even article 24 forbids the employment of children below the age of 14 years in factories and other hazardous employment. Court held that children (below 14 years) cannot be employed in any hazardous industry, mines, or other works and has laid down guidelines for the protection of the economic, social, and humanitarian rights of millions of children working illegally in public and private sectors. But it has provided certain exceptions such as helping in the family business, any entertainment industry or sports activities after school hours or throughout school vacations except circus and safety measures should be taken and it should not interfere with their education. In the case of the Bachpan Bachao Andolan v. Union of India, the Supreme Court held the prohibition of employment of children in circuses, raid – circuses to free children and establish rehabilitation schemes for child victims.And it has also not specified hours of work that children will be working after school or during school holidays. Suppose a child below 14 years of age comes home after school and without changing clothes started to help her mother in the housework. When that child we do homework? When he will get time to take proper rest and take care of health? Will the child have that much energy to go to school the next day? We will see that mostly girls are affected as their involvement in household works as it is not hazardous work. Girls have had time to do a school assignment and no time is left to play with their friends because they are involved in helping their mothers in housework, childcare, cooking, garments construction, etc. According to the report of the National Commission for the protection of rights of the children, 40% of girls age 15 – 18 years of age were out of school, among them 65% were involved in household works.
It forbids the employment of adolescents in a dangerous jobs such as mines, inflammable substances, and hazardous processes. If we see here that the amendment has brought down the list of dangerous or unsafe occupations for adolescents and added only mines, inflammable substances, and hazardous processes as defined under Factories Act, 1948. And this act is for adult workers and it is not appropriate to all children and adolescents. Here the legislation has failed to recognize children as a separate group that needs more attention for development and protection. This may allow employers to employ adolescents in businesses like chemical mixing system, cotton field, brick kilns, etc. which are hazardous. Now the government has to monitor more the working conditions of adolescents and also has to check that children are not employed in any occupations. Areas such as rag – picking and scavenging are not hazardous as per law, but if we always see that children from 5-6 years start picking rag from streets such as chemical and electronic wastes which cause serious health effects.
According to section 4, the central government can anytime sum or eliminate any dangerous occupation from the list included in the bill. Further, occupations can be removed from the list not by parliament, but by government authorities at their own discretion. According to section 5, the Technical Advisory Committee has been set up to advise the central government for the purpose of the addition of occupation and process to the schedule. Section 7 regulates the working hours and the period of an adolescent in non hazardous work. No adolescent will work for more than 3 hours before he had an interval for at least one hour. They shall not perform duty between 7 p.m. and 8 a.m. They will not be working overtime. They will not be permitted to work in any establishment on any day on which he has already been working with another establishment. Adolescent employed in an institution is entitled to a day off every week and the day specified shall not be changed by the employer more than once in 3 months (section 8). An occupier who permitted or employed adolescent to work will send notice to the inspector within 30 days- the name and situation of the establishment, the nature of the occupation or process carried on in the establishment, the name of the person in the actual management of the establishment and the address to which communications relating to the establishment should be sent (section 9). And occupier will also maintain a register for inspection by an inspector at any working-hour time, which will contain all the details about an adolescent working in that place (section 11). If the employer is not sure about the age of the child, i.e. he is below the age of 14 years or above 14 years, in the absence of a birth certificate, then the medical authority will determine it by doing age determination test or will take into consideration following documents of a child such as an aadhar card, birth certificate from school or examination board (section 10). Section 13 states that appropriate government can make rules with respect to the security and well-being of adolescents working in non-hazardous work mentioned under 13(2).
For the first time, the act has increased the penalty and imprisonment for the violation of provisions under the act, which shall be between 6 months to 2 years and a fine, maybe between Rs. 20,000 – Rs. 50,000. For repeat offenders, the punishment will not be less than 1 year but it can extend up to 3 years. If any parents or guardians are convicted of an offence under section 3 or section 3A, shall be punishable with a fine which may extend to 10,000. Here some parents must be scared of giving a huge fine for employing their children, so, they will likely lie about school attendance. The offences are now made compoundable and cognizable. The act gives the power to the government to do an inspection from time to time where children and adolescents are banned to work. In the last 6 years (2013-18) inspections carried out were 14.3 Lakh, out of which 0.10 Lakh prosecution were found, out of which more than 4530 were convicted.
The act also sets up a Child and Adolescent Labour Rehabilitation for children and adolescents. It will help to improve the condition of the children and sponsor education for them. The act also has a provision to create the Rehabilitation Fund for the rehabilitation of children. In 1988, the government started the NCLP scheme to rehabilitate working children in child labour. Under this scheme, the children between the age of 9 – 14 years are pulled out from the work and then put them into special training centres, where they are provided with proper education, profession training, mid-day meal under mid-day meal schemes, stipends (increased from Rs.150 to Rs.400), and health care facilities through School Health programmes under NRHM and then finally mainstreamed to formal education. Children of age 5 – 8 years are straight connected to the official education through Sarva Shiksha Abhiyan (SSA) and children of age 14-18 years are given vocational training opportunities through existing schemes of skill development. The government is also making efforts to target the families of those children who are rescued by giving them employment opportunities under MGNREGA, income, providing clothes through Shelter Homes schemes, food through the Public Distribution Scheme under food security, etc. To monitor the NCLP between centre and state government, an online portal PENCIL has been launched. Now the complaint can be filed online on the portal to the DNO. The government has also launched SOPs to ensure that there is a complete ban on child labour and adolescents are protected from unsafe or dangerous works. Also, it will help agencies in enforcement of the legal framework against child labour. Till now 12.8 lakh children have been mainstreamed to formal education since the NCLP scheme has come into force and no Kendriya Bal Shramik Vidyalayas have been opened in the country and the allocation of state-wise fund is also not made under this scheme so they have no data maintained centrally. At present 2,975 Special Training Centres are in operation in states/ UTs under NCLP. Under NCLP, in 2017-18, around 50,000 children were rescued or rehabilitated. The POSCO Act has been enacted to support the legal provisions for the safety of children from sexual crime and exploitation and it also prohibits child sex labour. In the 2020-21 Rajasthan budget, the state has proposed Rs. 100 crore for rehabilitation of children who were rescued from child labour and those who need support and care or raped or abandoned by their parents on streets and hospitals. For the first time, any state has proposed a separate budget for children.
The act has provided to set up Child and Adolescent Labour Rehabilitation Fund in which all the money of punishments have to be noticed and an amount of Rs. 15,000 will be deposited by the government for every child and adolescents rescued from the job. It gives the power to the government to make periodic inspection of places at which employment of children and adolescents are prohibited. But it should not have been restricted to dangerous occupations and processes only; it should have been extended to balance all places of work and occu
Many child rights activists and NGOs like CARE India, CRY, RIDE India, Child Line, Global March against child labour, etc., are also helping the government to eliminate child labour in India. They are spreading awareness and making parents and society to realize that children belong to study and not to work. For the well-being of children, the government has introduced program ICDS (Integrated Child Development Services). Under this scheme, the government provides food, preschool education, healthcare, health check-up, etc. to children below the age of 6 years and to their mothers. For the growth of adolescent girls of 11-18 years, the government has introduced a Rajiv Gandhi Scheme for Empowerment of Adolescent Girls (RGSEAG). India and the US Department of labour has formed the INDUS Project jointly to prevent and eliminate child labourers. Under the campaign, ‘Action Month Against Child Labour’ by the Bachpan Bachao Andolan project, in Dehradun, six children were rescued. They were working in hardware shops, bike repairing shops, and eateries.
Child labour is a very serious hurdle on the path of human development. Children need an environment where they can grow with proper care and love and can live a life of freedom and dignity. We have seen that mostly in rural areas, the children are lured with promises of a job and money and when they are brought to the cities, they are employed as bonded labours in factories, mines, etc., and some of them are used for helping for household work where they are paid less for maximum work and forced to work for a long duration of time. The government has taken many initiatives to make India free child labour by giving them the joy of living and providing free and compulsory education for the children so that they can get opportunities to develop their skills and become a respectful citizen. This will also reduce the rate of illiteracy in India. The government has also introduced schemes to provide mid-day meals in school so that at least they can get one-time proper nutritious food. It has even introduced many schemes for families who are very poor by providing employment, shelter, food, etc. so that they can lower the rate of unemployment and hunger.
In world, children are taken as the greatest gift to humanity. It is a duty of the state to protect these children not only through legislation but by other means also. We have seen there are mainly two reasons why parents send their children to do the job. Firstly, in some cases, parents are not aware of the advantages of education and are also unaware of various governmental schemes, which provide free education to poor children. Secondly, parents those who are aware of all the schemes, but they don’t want to send their children to schools as they will be deprived of the extra income what their children are earning and all in some cases as the government has made education compulsory, so it puts pressure on parents to show the fake attendance that their children are attending school, but in reality, they are involved in doing the work. In such cases, we should act as a responsible citizen of our country and report these cases against any person who hires or engage a child below the age of 14 years or adolescents in dangerous works, to the government or local NGOs, so that government can give them financial support, and rehabilitate them through schemes. These employers should be put behind the bars and must be punished. But the regulation will be going to be a dare, as it is hard to decide whether children are working under family enterprises or employers are hiring them to work.
India has so many legislative measures for the protection of children but still, we see that child labour exists in many sectors of an Indian economy. Flaws in the legislative enactment and also the weak implementation of the provisions by the incompetent inspecting agencies are one of the reasons for child labour. Children are the future of our society. We should not take away their freedom instead of that we should provide them with proper education, shelter, etc. They also have dreams like other children. We can end child labour, if the government functions effectively with the help of the public.
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