Thursday, 23 March 2017

Shiksha Srivastava

A SOCIO LEGAL ANALYSIS OF CHILD LABOUR: CHILD RIGHTS IN INDIA

lawji-A SOCIO LEGAL ANALYSIS OF CHILD LABOUR: CHILD RIGHTS IN INDIA

A SOCIO LEGAL ANALYSIS OF CHILD LABOUR: CHILD RIGHTS IN INDIA

Historical development of Child Rights in India
Childhood is considered universally the golden age of one’s life, but what we need to understand is that it is also the age of most vulnerability, especially when the children are very young. Thus they need to be cared for and protected, and our country has laws for the same. Also, the parent-child relationship is for the providing love, care and protection to the children, and they become the ‘guardians’ of the child, as the adults are responsible for the child’s welfare. So our society is ingrained with this belief that children cannot be left to fend for themselves and the structure of society and adult-child relationship have been defined accordingly and followed customarily.

The Constitution of India, which came into force in January 1950, contains provisions for survival, development and protection of children, which form part of the Fundamental Rights and Directive Principles of State Policy under Part III of the Constitution. On the international front, there was the Universal Declaration of Human Rights(UDHR) adopted in 1948, which contained specific references about child rights. Thus it was assumed that the UDHR is enough to ensure rights of the children, but due to the condition of the children in the post Second World War era, it was found to be inadequate and thus the United Nations General Assembly adopted the Declaration of the Rights of the Child, on November 20, 1959. It was an acknowledgement that children were a special vulnerable group, and thus required specific measures and policies directed towards their protection.
However, much before the 1959 Declaration came into existence the Indian Constitution had reflected all 10 principles of the Declaration including the articles contained in the UDHR. Nonetheless, the Government of India subscribed to the principles 23 enshrined in the Declaration and ensured that adequate steps were taken to guarantee these rights to children. .
In 1974, the National Policy for Children was adopted, which recognized children as the nation’s supremely important asset and declared that it is the responsibility of the State to nurture them. The scheme of Integrated Child Development Services (ICDS) was launched on 2 October 1975, which is considered to be one of the largest outreach programmes for children in the world. This scheme is implemented through a network of Anganwadi centres(AWC) at community level, which has proven to be one of the best policy for child development and education. In the same year, the Government ratified the ILO Convention No. 123 of 1965 relating to minimum age for underground work.
The year 1979 holds great significance in the history of child welfare and development. Being designated as the International Year of the Child (IYC) by the United Nations General Assembly, number of activities and programmes were undertaken throughout the world in this year. In India, a National Plan of Action was prepared to observe the IYC. The main theme of the National Plan of Action was ‘Reaching the Deprived Children’.
To deal effectively with the problem of neglected children and children in conflict with law, the Juvenile Justice Act, 1986 was legislated, repealing the then Children’s Act of 1960.
In accomplishing all the milestones in child rights development, both at the national and international level, the non-governmental and civil society organizations have played an equally important role along with the Government in virtually every aspect concerning children. The media’s role too has been critical in shaping public opinion and creating mass awareness, about children and their rights.

Problem of Child Labour
Child Labour has been defined as "work situations where children are forced to work on a regular basis to earn a living for themselves and their families, and as a result they remain backward educationally and socially in a situation which is exploitative and harmful to their health and to their physical and mental development,” by the International Labour organization (ILO). Thus Child labour refers to any work that subjects a child to economic exploitation or is hazardous, or interferes with the child’s education, or is harmful to the child’s health or physical, mental, spiritual, moral or social development. The worst forms of child labor are those situations where children work for more than nine hours in a day, with less than a minimum wages or no wages at all in hazardous conditions with no safety and adverse effects on their health, deprived of access to education and are forced to work outside of their family's home. 

Situation of Child Labour in India
The magnitude of child labor and rate of workforce participation in India has enormously declined in two decades. National Sample Survey data suggest that India’s child workforce during 2009-10 was estimated at little over nine million (9.07 million) as against twenty-one and half million (21.55 million) in 2003. During this period, the number of child employment has declined sharply by 12.48 million. As per the Census 2011, there are 1.26 crores economically active children in the age-group of 5-14 years, whereas, it was 1.13 crores in the 2001 Census.
At present in India the working children are found in organized, unorganized as well as hazardous sectors in spite of several legislation & judicial decisions. As child labour though declining, still continues unabated, the implementation of the laws, and the laws in themselves have come under scrutiny. Child Labour has interfered with the right of education and physical, mental, spiritual, moral development of the children This ultimately results in hampering the development of the nation. Thus we need to see the causes of child labour in order to pave the way towards the total prohibition of the same from the country.

Causes of Child Labour
Child labour is a socio economic problem in India as poverty and social security is considered to be the biggest cause of it. Parents and families who are poverty stricken in India send their children to work for meager wages in order to supplement their income and sustain their families. When there is an increasing gap between the rich and poor and privatization of basic services as part of the neo-liberal economic policies, it causes major sections of the population to lose their employment and adversely affects children more than any other group. Thus poverty makes the child helpless, and in order to survive the child sacrifices education and training, so even throughout the adult life remains in poverty. Thus child labour gets people into a vicious circle, escaping which is incredibly difficult, due to the socio-economic conditions.
Entry of multi-national corporations into industry without proper mechanisms to hold them accountable has lead to the use of child labour. Another cause of child labour is illiteracy and It is observed that child labour also becomes a cause of illiteracy, so vice versa alos becomes true, thus making it a vicious cycle.
It is also a product of such other different factors such as customs, traditional attitude, reluctance of parents to send their children to school, lack of education and awareness among the parents, urbanization and migration. Other than these the inadequacy of the machinery implementing the laws contributes to the problem of child labour pervading our society. Social Scientists also consider economic globalization to be equally responsible for the growth of child labor.

Constitutional Safeguards In India
The Constitution of India has various provisions dealing with child rights, which show the intention of the State to secure those rights.  Article 15 (3) of the constitution authorizes the state for the making any special provision for women and children.
Article 21: no person shall be deprived of his life or his personal liberty except according to procedure established by law. Article-21A: The state shall provide free and compulsory education to all children of the age of 6-14 years in such manners as the state may, by law, determine.
Article 23: Traffic in human being and beggar and other forms of forced labor are prohibited and any contravention of this position shall be an offence punishable in accordance with the law.
Article 24 provides that no child below the age of 14 shall be employed to work in any factory or mine or engaged in any other hazardous employment. Article-38 (1) provides that the State shall strive to promote the welfare of the people by securing and protecting as effectively, as it may secure a social order in which justice, social, economic and political shall be ensured.
Article 39 (E) proclaims that the State shall its policy towards securing that the health forced by economic necessity to enter avocations unsuited to their age or strength thus enjoins that childhood and youth are to be protected against exploitation, against moral and material abandonment.
Article 42 and 43 provide for securing just and human conditions of work and hold out a promise that the State shall endeavour to secure, by suitable legislation, economic organization or in any other way, for all workers, a living wage with specified conditions of work ensuring a decent standard of life and full employment of leisure and social and culture opportunities. This in it’s widest sense would definitely include child laborers.
Under Article 45 the constitution provide free and compulsory education for all children until they complete the age of 14 years. The general provisions under Article, 38, 42, 43, 45 and 47 of Directive Principles of State Policy, do not deal directly with child welfare but provide strategy for promoting welfare of children.
Article 46 makes provisions for promotion, with special care of the educational and economic interest of SC and STs and other weaker sections of the society. Article 47 lays emphasis on raising standard of living of people by the State, which includes children.

Legislative Provisions for protection of Child Labour
The Factories Act of (1881) was the first law to define child and to prescribe prohibitory regulations for employment of children below 7 years of age. The Factories Act, (1948), prescribes prohibitory regulations for employment of children below 14 years of age in any factory.
The Shops and Commercial Establishments Acts of different States, prohibit employment of children in the shops hotels, dhabas, street shops and commercial places. The Motor Transport Workers Act (1961) absolutely prohibits employment of children in motor transport and India Mines Act, (1952) prohibits employment of children below 16 years in any underground mines. The Plantation Labor Act, (1951) prohibit the employment less than age of 12 years.
Besides the above legislations, (Conditions of Employment) Act, (1966), The Apprentice Act, (1961), The Beedi and Cigar Workers, Contract Labor (Regulation and Abolition) Act, (1970) and The Atomic Energy Act, (1962) are Acts which provide that employment of children is a punishable offence. Protection of children from sexual offence Act, 2012, too has several features that are child centered.
Indian Government felt the need to enact a single Act to deal with prohibition of child labor and so The Child Labor (Prohibition and Regulation) Act was enacted in 1986. The Act prohibited employment of children below the age of 14 years in certain occupations and processes, including the transport of passengers, goods and mails and other hazardous work in railways and ports, the process like Beedi making, cement manufacturing, manufacturing of matches and explosives, mica cutting, soap manufacturing, wool cleaning and building and construction industries.
The Act provides for regulations of conditions of work by prescribing minimum working hours, prohibiting work at night, prohibiting overtime work, and weekly holiday. Also the Act gives measures for health and safety of child workers and emphasizes on maintenance of a register having details of children if employed by any organization.

Judicial Trends of Child Labour
The Indian Judiciary, especially the Supreme Court has given many land mark judgments against the forced labour and employment of children, some of which are discussed below.
The Supreme Court in the case of Francis Coralie v. Union Territory of Delhi[1] emphasized that the right to life mentioned in Article 21 of Indian Constitution includes the right to live with human dignity. This Article can thus be made applicable for the overall development of a child as well. In the case of People’s Union for Democratic Rights v. Union of India[2] the Supreme Court observed that it is a clear breach of Article 24 of the Constitution to employ the children below the age of 14 in the construction work. The court has prohibited any kind of violation of Articles, 23 and 24 and spoke strongly against any form of forced labour.
The Supreme Court in the case of Bandhua Mukti Morcha v. The Union of India and others[3] took cognizance of the employment and exploitation of children in carpet manufacturing in Mirzapur in Uttar Pradesh. In the case of Sheela Barse v. The Union of India[4] the children who were working near furnaces in glass industry were released.

Conclusion
With the above analysis, this Aritcle can be concluded by saying that Child labour has existed as an economic practice and social evil since time immemorial. But it was only after the advent of factory type units in the middle of the 19th century that children began employed in the industries where they worked for long hours and were exploited due to poor safety and hazardous conditions. Poverty compels the low income poor households to depend on their children to supplement the family income by earning wages. The absence of social safety nets increases the dependence on child labour. A number of careful attempts need to be taken to provide opportunities to students to avail education, increase awareness in society and implement the laws effectively.




[1] AIR, 1981, SC, 748.
[2] AIR, 1982, SC, 1473.
[3] 3 SCC, 1948, 161.
[4] 3 SCC, 1986, 596.