Child Labour (Prohibition and Regulation) Amendment Act 2016: Key Concerns and Issues

The recently promulgated Child Labour (Prohibition & Regulation) Amendment Act, 2016 (the 2016 Act) has come under intense scrutiny, owing to allegations that it indirectly facilitates child labour. The 2016 Act amends the Child Labour (Prohibition and Regulation) Act, 1986 (the 1986 Act), which prohibits the engagement of children in certain types of occupations and regulates the condition of work of children in other occupations. This essay seeks to conduct a critical exegesis of the changes heralded by the 2016 Act, and their implications in praxis, so as to better evaluate the slew of reforms proposed under the Act, and to assess whether the heavy backlash against the 2016 Act is indeed justified.

Markedly, the 2016 Act seeks to act as a harbinger of protection from exploitation, not only for children, but also for adolescents. The scheme of the Act distinguishes between “adolescents” and “children”, defining the former as persons whose ages range between 14 to 18 years; and defining the latter as persons whose ages range below 14 years, or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009 (the RTE Act) whichever is more.[1] While this amendment with respect to normative epistemology, which has been enacted in consonance with the RTE Act, is certainly welcome, the 2016 Act however does not appear to have accounted for the provisions of the Juvenile Justice (Care and Protection of Children)  Act, 2015, wherein the age of a child is defined as “below 18 years”. Similarly, India being a signatory to the UNCRC and duty-bound to be guided by it and implement the various provisions, the present Act should have taken children as mentioned in Article 1 of the UNCRC which says “a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. By retaining the age-limit of 14 years under the 1986 Act, the 2016 Act fails to streamline extant legal thresholds for determination of age of children, thus further obscuring the legal threshold with respect to this issue.

Further, in the light of the RTE Act, the 2016 Act seeks to prohibit employment of children below 14 years in all occupations.[2]  This is however subject to two significant exceptions. Firstly, such employment is not prohibited where the child helps his family or a family enterprise, which are not hazardous occupations,[3]  after school hours or during vacations.[4] Notably, the import of “family” under the 2016 Act is taken to include not only the immediate nexus of the family, such as the child’s parents and own siblings, but also comprises the siblings of the parents  as well.[5] The definition of “family enterprise” is analogously broad-ranging, as it includes “any work, profession, manufacture or business which is performed by the members of the family with the engagement of other persons”.[6] Here the 2016 Act has been criticised as impervious to the grim empirical realities of rampant child labour in the Indian context, since by couching these definitions of “family” and “family-based enterprises” in unduly wide ambits, it leads to further perpetuation of child labour in family-based enterprises. This is owing to the discernible reason that the labour of the children is insidiously outsourced to family-based enterprises, especially when no other alternatives are readily available to children. The 2011 Census results also state that 33.9 million children are out of school and vulnerable to labour. Further, around 1.01 crore children in the 5-14 age group earn for their families. They will not be protected under the amended law. Thus the 2016 Act remains oblivious to dual aspects of the problem of family-based enterprises—firstly, that these family members serve as access points for child labour in a majority of cases; and consequently, therefore, that there is a grave and urgent need for punitive prohibitions on solicitation of child labour by family members themselves.

Furthermore, it has also been ignored that children working in such family-based enterprises might be involved in a range of activities which place demands on a child’s physical and mental health, as strenuous as activities in other sectors. These enterprises often entail  involvement in physically and mentally taxing travails, such as embroidery work, carpet weaving, bangle making, beedi rolling, etc; being forced to work at odd hours; being exposed to the threat of sexual, physical and emotional exploitation (for example, domestic child labour, work in agriculture farms); exposure to significant health hazards in certain occupations (for example, food processing, chemical industries, brick kilns); and socio-psychological distress due to migration (for example, seasonal migration, migration for agriculture-related work in the sugarcane, cotton and soya bean industries). This evinces the ample scope for pervasive exploitation even within family-based enterprises. In addition, the misuse of this provision by contractors to disguise child labourers as simple assistants to adult family members, in most outsourced activities, cannot be ruled out. Thus, contractors have the opportunity to pass on higher quantum of work to children at considerably low wages, accentuating ill-treatment of children.

Critics also argue that this provision reinforces caste-based occupations, since most family enterprises are caste-based, especially in rural India. This only serves to further reify antiquated notions of socio-economic segregation, ascription of social status by birth, and to precipitate exclusion of future generations from productive human capital. By normalising and institutionalising child labour in the family-based enterprises, the 2016 Act fails to ameliorate the numerous adversities afflicting children belonging to disadvantaged socio-economic backgrounds, and inhibits their potential to overcome these difficulties concomitant with their unfortunate circumstances. Despite having a fundamental right to education, therefore, these children are inevitably forced into a situation where familial pressures to join the family occupations trump access to knowledge and prospects of emancipation from their backgrounds.
Notably, the 16 occupations and 65 processes that were listed as hazardous in the 1986 Act, have now been replaced by merely 3 occupations and 29 processes, mentioned in the Factories Act, 1948 which covers only the organised sector. The redefining of hazardous occupations and processes has made a range of occupations like domestic labour, work in brick kilns, handling chemical insecticides in agriculture, gem cutting, work in slaughterhouses, carpet weaving, cotton ginning, stone breaking and crushing, tyre re-treading, etc., non-hazardous for children. Therefore the 2016 Amendment is silent on issues arising as to the rights of children engaged in hazardous occupations in the unorganised sector. The gap left unaddressed by the 2016 Act could prove severely detrimental to the regulation of child labour in the unorganised sector. Further, the Report of the Standing Committee on Labour, 2013 (the 2013 Report)[7] had also recommended that the meaning of hazardous occupations and processes should be widened to include all those occupations/processes that may jeopardise health, safety and morals of adolescents, in line with the International Labour Organisation Convention 138.[8]

Moreover, recent NCRB data shows that around 25 per cent of children raped were targeted at work by their employers and co-workers. [9] Since the 2016 Act prohibits employment of children in all occupations and processes, the power to make periodic inspections of places of employment, reposed in the appropriate Government, should not have been limited to hazardous occupations only, and should have been expanded to cover all places of work and occupations. Nonetheless, the 2016 Act appears oblivious to these pressing concerns.

The second exception under Section 3(2)(b) of the 2016 Act states that such employment of children is also not prohibited, if they work in the audio-visual entertainment industry, which would include advertisement, films, television serials, sports activities, et al. [10] However, the rationale for offering such exception, with specific regard to the listed activities, is not clear. As pointed out in the 2013 Report, there is no compelling reason why the prohibition of employment of children in a subordinate relationship of work and labour should not extend to those working in the audio-visual entertainment industry. The Committee observed that in recent times, there is an increasing trend of employment of children and adolescents in this industry, and there have been cases where the children have not been able to bear the physical and mental trauma associated with the rigorous routines involved. Therefore the exception should have been removed altogether, so as to include children working in the entertainment industry within the aegis of protection afforded by the 2016 Act.

In the light of the aforementioned concerns, the Committee had furthermore specifically recommended that all such exceptions should be removed, and that employment should be prohibited in all occupations where a subordinate relationship of work and labour exists. However these recommendations were wholly ignored.

Ostensibly, at first blush, it appears that Section 3(2) may be cognizant of some of these dangers, to a limited extent, because it also states that the aforementioned exceptions will not apply if any labour undertaken by the child in pursuance of working in the family, family-based enterprises or the audio-visual industry, affects the school education of the child. [11] This proviso is however virtually ineffective, since it is realistically very difficult to monitor whether children are indeed working in their homes, and to check whether they are helping their parents or working to supplement the family income. Further the proviso does not lay down any threshold or standard by which it may be possible to assess the impact of pursuance of child labour in the designated spheres on the child’s school education. Questions such as who will assess whether the child’s education is being impaired are also left unaddressed. As such, Section 17-A inserted by the 2016 Act, empowers the District Magistrate for ensuring the implementation of provisions of the Act. However, as is clearly evident, it is neither feasible nor realistic for one individual to monitor whether children’s education is being inhibited, let alone deal adequately with issues of child labour that do enter the legal arena. Cognizant of the immense burden on the District Magistrates to dispose cases, the 2013 Report accurately identified that they may not be able to spare the time to appropriately dispense justice in each individual instance of violation of the 2016 Act. Therefore the Report had recommended the constitution of Vigilance and Monitoring Committees, headed by local Members of Parliament, to review implementation of the Act, who would be acting under the aegis of the District Magistrates for final enforcement. However these suggestions were not heeded in the formulation of the 2016 Act.

Furthermore, an important aspect that appears to have escaped the notice of the legislators is that these ostensibly child-friendly provisions can be misused to render some forms of child labour (for instance, in the entertainment industry) completely invisible. This may end up further marginalizing vulnerable children working in these sectors, who would then be faced with prospects of irregular school attendance, lower levels of learning and higher dropout rates. Thus the exception only precipitates exclusion of the most disadvantaged children who need education, which is now their fundamental right under Article 21-A of the Constitution.

It may further be noted that the rescue of children and adolescents who are employed in contravention of the provisions of the 2016 Act, and their subsequent rehabilitation, are governed by a plethora of laws, and therefore require timely coordination among various Ministries, such as those of Labour, Human Resource Development, Women and Child Development, Home and Rural Development, et al. Such multi-stakeholder engagement necessitates the formulation of a comprehensive Child Labour Policy, which eschews a fragmented approach as adopted by the 2016 Act, and instead lays down detailed procedures and guidelines for implementation. This would facilitate consolidation of the varying schemes under different laws for rehabilitation of these children and adolescents.

Thus, it can be inferred that considerable shortcomings plague the normative scheme as well as implementation framework of the 2016 Act. These ambiguities and lacunae need to be redressed at the earliest, so as to ensure that the objectives of child welfare and development are holistically achieved.

* 3rd year student, BA, LLB (Hons.), the West Bengal National University of Juridical Sciences (W.B. NUJS), Kolkata.
[1] S. 4, 2016 Act.
[2] S. 3(1), 2016 Act.

[3] As enumerated in the Schedule to the Act.
[4] S. 3(2)(a), 2016 Act.
[5] Expln. (a) to S. 3(2)(b).
[6] Expln. (b) to S. 3(2)(b).

[7] Standing Committee on Labour, Report on the Child Labour (Prohibition and Regulation) Amendment Bill, 2012 (No. 40), 15th Lok Sabha (2013), available at  <http://www.prsindia.org/uploads/media/Child%20Labour/SCR-child%20labour%20bill.pdf>

[8] The Minimum Age Convention, 1973 concerning minimum age for admission to employment.

[9] Deeptiman Tiwary, NCRB data: 25 per cent of children raped were targeted at work by their employers and co-workers, The Indian Express (30-8-2016), available at <http://indianexpress.com/article/india/india-news-india/ncrb-data-rape-child-minor- workplace-by-employee-crime-3005142/>.

[10]  S. 3(2)(b).

[11] Proviso to S. 3(2).

 

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