India is the second most populous country
of the world with a huge share of child population in its total population. The
National Commission for Protection of Child Rights has made projections
regarding child population in India in terms of percentage of child population
in total population of India.
This Projection has been
explained in the following table.
Table1.0
|
Percentage of Children in Total
Population of India
|
|
Age
group
|
1991
|
2001
|
2006
|
|
0-4
|
12.0
|
10.7
|
10.4
|
|
5-9
|
13.2
|
12.5
|
10.7
|
|
10-14
|
11.9
|
12.1
|
11.0
|
|
5 to
14
|
25.1
|
24.6
|
21.7
|
|
0-14
|
37.2
|
35.3
|
32.1
|
|
Note:1991
Population Census figures excluded J and K State and for comparative purposes
have excluded figures for J and K for 2001Source: Population Census
1991 and 2001.* Population Projections, Based on Census of 2001
|
www.ncpcr.gov.in
According to the 1991Census,
there were 25.1 percent children in India in the age group of 5-14. This
percentage decreased to 24.6 according to 2001 Census. Moreover National
Commission for the Protection of Child Rights on the basis of 2001 Census
projected 21.7 percent of child population in India’s total population by the
year 2006. It is clear from the above table that India is having a huge
population of children in its population.
Table 1.2
Child line India estimates on
child labour
2010
|
All
India Main Workers
|
Male
|
Female
|
Total
|
|
5-9
yrs
|
501890
|
308209
|
810099
|
|
10-14
yrs
|
3070300
|
1858116
|
4928416
|
|
15-19
yrs
|
15098122
|
5448644
|
20546766
|
|
Total
India
|
18670312
|
7614969
|
26285281
|
|
% of
child labour to total workforce
|
7.78%
|
10.47%
|
8.41%
|
|
Total
workforce
(all
ages)
|
239923441
|
72708941
|
312632382
|
Source: www.childlineindia.org.in
This table 1.2 also states the
magnitude of child labour in India according to which the total number of child
labourers in the age group of 5-14 year is 5738515and in the age group of 5-19
year the number of child labourers is 26285281 this figure constitutes 8% of total workforce which
means in the total workforce of India 8% workers are child labourers which is
the biggest threat to our country in every aspect.
Thus one thing is clear that
magnitude of child labour is very high in India and child labour hampers the
growth of childern who are engaged in it severly. Resultantly it effects our
societial development in the long run.It is because of this issue that a lot of
attention has been made towards this issue in the pre-independence and
post-independence era by the government of India. There are various
constitutional,legal and institutional arrangements in india which prohibit
child labour.
An attempt has also been made to
analyse the effectiveness of these legislations since they have been enacted
numerous legislations have been made in india which deals with the various
aspects of child labour in india.various commissions ,committees,sub-committees
and acts have been made by the government to tackle the problem of child labor
in all possible means.
To prohibit the child labor
Indian Government has made various Constitutional, Legal and Institutional arrangements.
There are various articles in the Constitution of India, various Acts of
Government of India and various national and state level institutions which
prohibit the child labor and protect the child rights.
The articles which protect the
rights of the children are included in the Part Third, Part IV and Part IV A of
the Constitution of India. Fundamental Rights are included in the Part III of
the Constitution of India, Part IV consists of Directive Principles of State
Policy and Part IV A consists of Fundamental Duties. A list of major
constitutional provisions mentioned in the fundamental rights is as follows:
Article 14: The State shall not
deny to any person equality before the law or the equal protection of the laws
within the territory of India.
Article15 (1) The State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex,
place of birth or any of them.
(3) Nothing in this article
shall prevent the State from making any special provision for women and children.
Article 21 A… shall provide free and
compulsory education to all children of the age of six to fourteen years.
Article 23(1) Traffic in human beings and
beggar and other similar forms of forced labor are prohibited and any
contravention of this provision shall be an offence punishable in accordance
with law.
Article 24: No child below the
age of fourteen years shall be employed to work in any factory or mine or
engaged in any other hazardous employment.
Besides the above mentioned
provisions mentioned in the fundamental rights there are other provisions in
the Indian constitution related to protection of human rights which are
included in the Directive Principles of State Policy.
These are as follows:
Article 39. The State shall, in particular,
direct its policy towards securing—
(e) that the health and strength
of workers, men and women, and the tender age of children are not abused and
that citizens are not forced by economic necessity to enter a vocation unsuited
to their age or strength;
Article 39 (f) that children are
given opportunities and facilities to develop in a healthy manner and in
conditions of freedom and dignity and that childhood and youth are protected
against exploitation and against moral and material abandonment.
Article
41 Right to work, to education and to public assistance in certain
cases. The
State shall, within the limits of its economic capacity and development, make
effective provision for securing the right to work, to education and to public
assistance in cases of unemployment, old age, sickness and disablement, and in
other cases of undeserved want. Article 45. The State shall
endeavor to provide, within a period of ten years from the commencement of this
Constitution, for free and compulsory education for all children until they
complete the age of fourteen years.
The Fundamental Duties mentioned in Part
4-A of Indian Constitution also deals with the protection of child rights.
Eleven Fundamental Duties have been mentioned in this part of the Constitution
.Eleventh Fundamental Duty was added in 2002 by the Constitution (Eighty-sixth
Amendment) Act, 2002.According to Article 51A, it shall be the duty of every
citizen of India—(k) who is a parent or guardian to provide opportunities for
education to his child or, as the case may be, ward between the age of six and
fourteen years4.
Thus it is clear that child labour
legislation has been made in India since the pre-independence era and in the
post-independence era and a lot of laws have been made for tackling this
problem a brief description of all the acts have been made as under.
Child labour Legislation
The legacy of the British government was
also carried forward by the Indian government after independence and government
of India paid attention towards the issue of child labour prevailing in India.
Indian Government endeavored to prohibit the child labour working in various
establishments even including the dhabas, though it was covered under the
category of prohibited occupations for children only in the year of 2006.
Thus in the post independence era various
acts have been passed by government for the prohibitation of child labour.
Minimum Wages Act 1948:
This was the first legislation in post
independence era to take in account the problem of child labour .This was
probably because the bulk of children in the country were employed in
agriculture and other allied works in rural and semi urban areas. The act
defined child as a person who has not completed the age of 14 year of age
provided that the appropriate government fixed different rates of wages for
adults, adolescents and children. It also provided the normal working of
children and no child could be permitted to work overtime5.
This act prohibited the child labour for
the persons below the age of 14 year but the children up to the age of 18 year
were permitted to work in agricultural and semi agricultural activities. In
this manner this act did not completely prohibit the child labour.
The Factories Act, 1948:
The Act prohibits the employment of
children below the age of 14 years. An adolescent aged between 15 and 18 years
can be employed in a factory only if he obtains a certificate of fitness from
an authorized medical doctor. The Act also prescribes four and a half hours of
work per day for children aged between 14 and 18 years and prohibits their
working during night hours5. This act again permitted the children
between the age group of 15 to 18 year to do child labour even in independent
India .From this act it can be judged that the human rights of children were
being exploited even in the post-independence era.
The Mines Act, 1952:
The Act prohibits the employment of a child
below 14 years of age5. The Merchant Shipping Act, 1958, clause 109. Employment of children.- No person under fifteen
years of age shall be engaged or carried to sea to work in any capacity in any
ship, except-(a) in a school ship, or training ship, in accordance with the
prescribed conditions; or (b) in a ship in which all persons employed are
members of one family or (c) in a home-trade ship of less than two hundred tons
gross; or (d) where such person is to be deployed on nominal wages and will be
in the charge of his father or other adult near male relative.
This act also could not prohibit the menace
of child labour completely from the Indian society. Because this act also
permitted the children above the age of 14 year to work in mines while it is
very hazardous to do any sort of work in mines.
The Motor
Transport workers Act, 1961:
According to Article 2(c) of this Act” child” means a
person who has not completed his fifteenth year. Article 21 of this Act
Prohibits employment of children and it has been stated in this article of this
Act that no child shall be required or allowed to work in any capacity in any
motor transport undertaking5. Again this act could not completely
prohibit the child labour because there is no such type of provision in this
act which directly prohibits child labour.
The Bidi and Cigar Workers (Condition of
Employment) Act, 1966:
Employment of children under14 year of age
is prohibited. It not only prohibited the employment of children who have
attained the age of 14 in industrial premises where any process connected with
the manufacture of bidis and cigars take place ,but also the employment of
young persons who have completed their 14th but not 18th
year of age,between7 p.m. and 6 a.m5.
Though the government of India banned the
use of tobacco items at public places, yet this act is permitting the minors to
do child labour in the bidi making industry.
The Radiation Protection Rules, 1971:
A person shall not be qualified for
being engaged in as an apprentice to undergo apprenticeship training in any
designated trade, unless he is above 14 year of age5. The radiations of any kind are harmful to
human beings but this act permits the children between the age group of 15 year
to 18 year to work in those establishments where radiations take place.
The Child Labour (Prohibition and
Regulation) Act, 1986:
The Act prohibits the employment of a child
who has not completed his 14th year of age in any of the occupations
set forth in part A of the schedule or in any workshop wherein any of the
processes set forth in Part B of the Schedule are carried on. The Child Labour
(Prohibition and Regulation) Act, 1986 is a major Act which prohibits child
labor. This Act prohibited child labor in13 occupations and 57 Processes when
it came in to force in 1986 and all most all the above mentioned industries are
included in this act where child labor is prohibited. But this act did not
prohibit child labor in Dhabas when it was enacted. Subsequently child labor
was prohibited in dhabas according to Ministry of Labour ,Government of India’s
notification no. s.o. 1742 (E) dated the 10th October, 2006 published
in the Gazette of India Extraordinary.
Because of this notification ,The Child
Labour (Prohibition and Regulation) Act, 1986 and Rules was amended in 2008 and
it prohibits child labor in 16 occupations while Dhabas have been mentioned as
a part of the fifteenth occupation which also covers, restaurants, hotels,
motels, tea shops, resorts, spas or other recreational centers and 67 processes5.
This act is the most comprehensive act to prohibit child labour in India but
even then child labour is prevailing on very large scale in India. What are the
shortcomings of this act because of which the child labour is prevailing on
such a large scale is a serious issue which needs proper introspection. Some of
the questions which can be raised over here are whether all the state
governments in India are fully committed for the prohibition of child labour
and how much effectively the state commission for the protection of child
rights is working. Even in various states of India these commissions do not
exist.
Punjab has recently appointed this
commission in October,2011.So which departments of central government and state
governments are strictly following these acts and are implementing this act in
toto.
The Juvenile Justice (Care and Protection)
of Children Act, 2000:
This Act was last amended in 2002 in
conformity with the UN Convention on the Rights of the Child and covers young
persons below 18 years of age. Section 26 of this Act deals with the
Exploitation of a Juvenile or Child Employee, and provides in relevant part,
that whoever procures a juvenile or the child for the purpose of any hazardous
employment and keeps him in bondage and withholds his earnings or uses such
earning for his own purposes shall be punishable with imprisonment for a term
which may extend to three years and shall also be liable for fine5.
The Right of Children to Free and
Compulsory Education Act, 2009:
Provides for free and compulsory education
to all children aged 6 to 14 years5.
This legislation also envisages that 25 per
cent of seats in every private school should be allocated for children from
disadvantaged groups including differently abled children. This act provides
provisions for giving primary education to the children between the age of 6
year to 14 year but still various children are not attending the forma; school
education within this age group There are various reasons behind non-coming of
children to schools at this age . But some such provisions should be made in
this act which should make coming to school more lucrative for these children.
All these acts passed by government of
India in the pre-independence and post-independence era were implemented while
keeping in view the menace of child labour. But still child labour is
prevailing on very large scale in India. One of the major criticism of the
legislation on child labour is the lack of uniformity regarding the various
acts define child as differently.
These acts do not conform to a single
minimum age for declaring a person as child while near about all the laws of
western countries consider a person below 18 year as child. the minimum age
differ from state to state and industry to industry. this is not only true of
the minimum age but also of the working hours, rest periods, working hours
during night etc.
Even the various acts of government of
India prohibit child labour even then employers employ children in their
different establishments, there is hardly any case where government take the
employers violating child labour laws to courts. Even if some employers are
caught on the pretext of employing child labourers, judicial punishment is
limited and sometimes such type of employers are only fined. Resultantly laws
prohibiting child labour does not act as deterrent and employers keep on
violating these laws. The wide spread giant of corruption is omnipresent in
India therefore the authorities concerned are also held responsible for the
prevalent of child labour.
Another
shortcoming of the child labour laws is that they prohibit child labour in very
limited occupations therefore child labour is being employed in some other
occupations where such type of prohibition does not exist. For instance The
Child Labour (Prohibition and Regulation) Act, 1986 and Rules prohibits child
labour in 18 occupations and in 65 processes. All these occupations and
processes have been discussed in detail in Annexure-II. But child labour is
prevailing in majority of the occupations and processes mentioned in this act.
The Government of India has made
various constitutional6, legal7 and institutional arrangements
to deal with the menace of child labor and thereby strives to protect and
promote child rights. However despite the protective mechanisms in the form of
prohibitive, preventive and punitive measures, the problem persists.
1.
Convention
on the Rights of Child, 1989, UN, New York, pp1-12. The Convention
emphasizes that children everywhere have: the right to survival; to develop to
the fullest; to protection from harmful influences, abuse and exploitation; and
to participate fully in family, cultural and social life. The four core
principles of the Convention are non-discrimination; devotion to the best
interests of the child; the right to life, survival and development; and
respect for the views of the child. Every right spelled out in the Convention
is inherent to the dignity and harmonious development of every child. The
Convention protects rights of children by setting up standards in health care;
education; and legal, civil and social services.
2.
Facts on
Child Labor,
2010, International Labor Organization, Geneva,
pp.1-2.
3.
Bhakhry,
Savita, (2006), Children in India and their Rights,
National Human Rights Commission, New Delhi, p. 43.
4. Basu, D.D. (2002); Introduction
to the Constitution of India, Wadhwa and Co., New Delhi. pp, 79-137
5. www. lawmin.nic.in
