.....CHILD LABOUR LAW.....

CHILD LABOUR IN INDIA
A study on legal issues arising out of employment of children
      Submitted in 1996 for award of Ph.d. degree with specific inputs  on ‘Residential School’   

The human development profile in India is stagnating with the massive employment of children in deplorable conditions. The daunting task of survival stares at the faces of the millions of children. They are alien to the spirit of manhood as the human rights and fundamental freedoms have turned hostile.  The state cannot look upon the spectacle silently as children constitute the foundation of the nation. Holistic rearing of children is inextricably linked to the destiny of the nation as that alone can turn children into its real assets. Otherwise liability will only be thriving as the deprived and disabled cannot be counted as citizens but only as subjects. If the numbers of the disabled soar, the state is not worth the name. For one of the basic duties of the king, as incorporated in Rajadharma of ancient India, was to protect every individual in every respect and ensure his happiness. Kautilya in the Arthashastra laid down thus:

“In the happiness of his subjects, lies the happiness of the Ruler; in their welfare, his welfare; whatever pleases him the ruler shall not consider as good but whatever pleases his subjects, the Ruler shall consider as good”.

In a fitting tribute to the revered childhood of the voiceless, Dr. Shankar Dayal Sharma, the then President of India, exhorted saying that “neither tradition nor economic necessity can justify child labour”.

In this backdrop, the study proceeds to discuss the legal issues of employment of children below the age of fourteen and the same is divided into ten chapters.

I

Childhood is a time of discovery as the world and all it contains are new to children. It is a time of excitement and anticipation. It is a time of dreams and fantasies. And it is a time of receiving love and appreciation. Paradoxically, a picture of contrast is a common experience in India as a vast majority of children who are starved of basic needs of nutrition, health and education are made to work at an early age in exploitative conditions. The spectre of child labour is a glaring anomaly in a country graciously adorning human rights. It has assumed scary visage as the employment of children in adverse scenario points to the blatant denial of joys of childhood. Its persistence is an affront to our conscience as the deprivation of childhood makes their right to be human blunt. It is a picture of contrast in the sense that it is the indication of the missing reconciliation between the shocking profile of the millions of children employed and the inspiring concern for human values. It is this contrast which is assiduously highlighted to assert that child labour cannot be looked upon as a mere economic problem but must be treated as one involving the higher values of human rights of children.  And this changed outlook is drafted to underscore the accountability of the state for its failure to preserve the ethics of childhood.

II

Children have a particular identity as children and they also have a universal identity as human beings. It is in this context, in the first instance the human rights and fundamental freedoms of mankind with focus on the right to life is focused at length. Also in consonance with broad agreement on public welfare underlying the fact that the man’s worth is the state’s worth, the path of accountability of the state in the context of massive poverty and diseases is taken through with emphasis on   the wider obligation of the State under various international instruments to ensure to all access to survival requirements ultimately emphasising survival with human dignity as an integral part of the right to life.

III

The concern for mankind expressed unequivocally and transcending the globe will be real and moving and not mere rhetoric and ritual if and only when it begins with children, as, to quote the words of Nehru, the human being counts much more as a child than as a grown up. Nexus between today’s needs of children and tomorrow’s potentials of mankind emphasises the theme of “child first”. The survival of children in the foremost, and their growth and development, the next significant in the logical pursuit, assumes significance as the stratagem for the emancipation of mankind. Obviously, the impulse is that the investment in the nascent generation is the investment for better. The obverse is not less obvious and predictably, it cannot be lost sight of. Eventually traced out are the twin obligations of the state of ensuring survival and development of children and of protecting them against economic exploitation. The rights correlative to such obligations are the right to health, right to nutritive food, right to education and the right against exploitation.

IV

Explaining the functional relationship between health and nutritive food with vehement touch on their mutual reinforcement, the consensus of the international community on the right to food and further on the obligation of the state to take steps oriented towards the realisation of the said right and to devote all available resources for the same is reiterated.  Besides, the positive effects of education are also brought out to impress upon its significance in the development of human capital.

V

Right against exploitation relates to the realm of employment of children at an early age in adverse conditions.  The underlying emphasis is on the continuance of the growth and development of children without postponement and deprivation until they become complete in all respects ensuring the wholesome personhood. It is both necessary and proper to appreciate that the employment of children at an early age be treated with contempt when the positive effects of work are missing and in such eventualities, actions interdicting child labour becomes imperative. Reiterating the firmer commitment to promotion of the human rights of children, the ILO’s dual policy of progressive elimination of child labour and pursuit of transitive measures pending such elimination to ensure proper protection of children while at work is drafted in to the study.

VI

Further, evaluation of the provisions of the Constitution and other statutes on the employment of children set against the international standards is made in a bid to reinforce the theme of protective childhood.  Social justice through equality of opportunity under Article 14 and full evolution and expression of personality of human beings through Article 21 are duly emphasised in the light of the decisions of the Supreme Court in Mullain’s Case, Bandhua Mukti Morcha Case, Olga Tellis Case, Delhi Development Horticulture Employee’s Union Case, Mohini Jain Case and Unnikrishnan Case. The mandatory resolution of Article 23 with the new impetus it has acquired through liberal construction of its language is also significant. In the realm of childhood protection, the articulation in the Constitution of the harmonious blending of anti-child labour bias under Article 24 and wholesome development of children under Article 39(e) and (f) and Article 45 is also emphasised. Unfortunately, the matching obeisance to such reverence as apparent from the total blunt of Dr .Ambedkar’s vision of ensuring education for all children below the age of 14 is found missing. 

VII

The problem is discussed with all its ramifications in the particular context of various occupations, the children are forced to visit frequently and, after taking through various studies made in this behalf, a catalogue of violations is made out. Even as the state owes an explanation for prescription of standards lower than the minimum prescribed at the international level, it is equally found that even such standards have not been strictly enforced. It is this laxity which is the accelerating force behind the perpetuation of child labour. As the reports spanning through the evil have indicated, the clandestine employment of children prevailed so long as the state was able to wrap the evil under the carpet and later, it gave a new twist to the problem with only a change of strategy. The strategy was the shift from clandestine to legitimization. The theme of legitimacy was rationalised on the ground of poverty and further as a strategy for achieving eradication of child labour ultimately by enforcing minimum wages, shorter working hours, leave compensation, non-formal education etc., as the employer would soon discover that child labour is not cheap and would be obliged to substitute adult labour. However, humanising the work life is only a promise to the detriment of children as the Act of 1986 enacted as a part of the new strategy is no where near the fulfilment of the mission.

VIII

A closer scrutiny of circumstances in which the child-labour intensive centres thrive points to the tacit acquiescence by the State in the exploitation of children by the vested interests.  Poverty is only a pretext for exploitation and even if it be real in isolated instances, child labour can not be encouraged.  Hence, the new twist is no better and it is only a retrogate step as the employers continue to gain and grab. While the employment of children is totally devoid of positive contents of helping children and their families to feed their stomachs full, hide their nakedness and fight their sickness, it swears to wipe out the essentials which are necessary to ensure ‘childhood’ in the early phase and ‘full personhood’ at the later stage in true compliance with the spirit of Constitution. The parameters of the law as traced in the light of various decisions of the Supreme Court are so well sketched that the facts on hand fit well into them establishing beyond doubt the violation of the constitutional rights of the children so employed. Driving home the point of inaction on the part of the state it is stressed that the best way to go about restoring human dignity in the life of millions of people, especially children, is to ensure effective enforcement of laws on the pain of making the State and its officers accountable.

IX

With the enquiry being set on the relevance of the Rule of Law in the context of human rights abuse, the study turns the focus to the sustenance of the principle of accountability. Referring to the views of the Supreme Court as expressed in Asiad Labour Case, and Haryana Bonded Labour Case that there is highest public interest in the observance of the constitutional guarantees, the answerability of the State for its acts of commission and omission is duly recognized. Firstly, it is certainty from the complete reading of Articles 256, 365 and 356 of the Constitution of India in the light of the considered view that due observance of laws is a constitutional necessity. Secondly, accountability of the Council of Ministers is a matter for serious consideration. The same is also discussed in detail with available indication of its acceptance in principle but without application in reality. In the last leg, the accountability of the civil servants is also examined in the context of their failure to energise the wheels of administration in the best interests of the children. The path-breaking judgements of the Supreme Court are more revealing of its urge for the sustenance of the Rule of Law.

X

Finally, inferences drawn earlier are summarised and based on the said inferences, suggestions are made to provide solutions to the problem of employment of children involving human rights. They are comprehensive ban on child labour, free and compulsory education, residential school and child labour ombudsman.

Of various suggestions made, the one pertaining to ‘Residential School’ is noteworthy. As the suggestion goes, it is both necessary and important for the state to ensure human rights of children and for that purpose, children below the age of 14 are to be provided with basic necessities of life in order to avoid employment on one hand and ensure childhood. on the other. Residential school is suggested as an appropriate institution where children below the age of 14 who are otherwise destitute will be provided with the comfort of being children enjoying their ‘childhood’ in reality. The theme of residential school is not new to the state as it appears from its exercise of running ‘special schools’.  These special schools are part of the ongoing National Child Labour Projects.

The concept of ‘Special School’ now in vogue in different parts of the country under the National Child Labour Projects came to be introduced in 1986 for the first time only in Sivakasi in the State of Tamil Nadu. It was a three - year project, started with the cost of Rs. 13.89 crore under which special schools were opened in and around Sivakasi area with facilities like stipend, free clothes and nutritious meals for children withdrawn from match and fireworks industries in Sivakasi.

The same was in sequence to the unique developments that took place during early 80s in the State of Tamil Nadu. In 1976, a Committee was constituted under the Chairmanship of Shri Harbans Singh, I.A.S., Member, Board of Revenue, Government of Tamil Nadu to study the problem of child labour in Sivakasi of Ramand District of Tamil Nadu. In 1983, a public interest litigation on the problem of child labour in Sivakasi was moved by me ( K. Chandrasegran  Vs. Union of India and Others Writ Petition ( Civil) No. 8778 of 1983) seeking, among other things, appointment of a committee to study the problem afresh in the light of the contentions raised in the petition. It was in consequence to this petition, during March 1984, the Government of Tamil Nadu appointed the Haribhaskar Cmmittee to study the problem of child labour in Sivakasi. In my written submissions to the committee, I put forth a proposal for establishment of residential school meant to provide children who are forced to take up employment with accommodation, maintenance and education. Mr. Mehta filed his petition only in 1986 (Writ Petition (Civil) 465 of 1986) and the same was disposed of in 1996 with certain directions. It was after the submission of the report by the Haribhaskar Committee in 1985, the special schools came to be introduced first in Sivakasi during 1986 and later in other parts of the country in stages.

  Later, the project was modified in tune with the Child Labour (Prohibition and Regulation) Act of 1986 and the National Policy on child Labour evolved in 1987 and extended to the other parts of the country gradually.  In 1988, seven such child labour projects under the NCLP scheme were launched in nine districts of high child labour endemic states in the country. The number of projects was later increased to twelve by the middle of 1994. Under the tenth plan, the number of districts covered by the scheme went to 250.

The International Programme on the Elimination of Child Labour is a global programme launched by the International Labour Organisation in December 1991and India was the first country to join the same in 1992 when it signed a MOU with ILO. IPEC became operational in 1993 and some of the NCLP are being funded by the ILO. Besides, the Government of India and the Department of Labour, United States of America signed a joint agreement to fund ‘Indus Project’. The project inducted in 2003 aims to identify children working in hazardous occupations and to admit them into formal/special schools and impart vocational training to them. Indus is presently implemented in 21 districts in the country.