In early April came the slightly disconcerting news that the Union government was planning to dilute the Child Labour (Prohibition and Regulation) Amendment Bill, 2012. It may soon be illegal to employ children below 14 years of age in any type of commercial or paid work, except in family shops and ventures. It is the exception here which is the dilution in question. And, there’s more in the details.
Union Minister of State for Labour and Employment, Bandaru Dattatreya, was reported in the media as having asserted that there was a need to amend the existing Child Labour Act since it did not prohibit child labour in all occupations, and was not in conformity with the International Labour Organization (ILO) conventions. Dattatreya also said that the proposed amendments would completely prohibit employment of children aged below 14 years, and that of adolescents (14-18 years) in hazardous occupations. The ministry sent the Bill to the Cabinet for approval, which in turn asked whether a complete ban would be feasible. The draft was reworked and re-sent for approval soon.
The government’s proposals bring the Bill in direct conflict with the Right of Children to Free and Compulsory Education Act (or, Right to Education Act -RTE), 2009. The ministry wants the Child Labour Bill to be in sync with the RTE Act, which makes education compulsory for all children up to the age of 14. Yet, in case the government does not ban child labour outright, the Bill would be at loggerheads with the RTE Act. India became one of 135 countries to make education a fundamental right of every child when the Act, enacted in August 2009, came into force from April 1, 2010. Technicalities matter.
The official ruse for the dilution being offered is that the government wants to encourage learning at home as it leads to, well, “entrepreneurship.” Family businesses will be accorded a wide definition and cover any job, profession, or business performed primarily by family members. This, the government claims, will help poor families where children help in family subsistence. And that would be a case of being back to square one – where it had all started, since one of the issues with child labour always was about children having to perforce work for their own families. These familial compulsions had led to a high rate of drop-outs from schools, especially that of girls. If informal education now gets the official nod, then the formal education that is constitutionally guaranteed to children will go for a toss.
Yet, it is not as simple as it sounds: the issue is far more complicated.
The Child Labour (Prohibition and Regulation) Bill, 2012 had been introduced in the Rajya Sabha by the previous government at the Centre in 2013. The Bill had sought a complete ban on child labour until children finish elementary education guaranteed under the RTE Act. The Bill wanted to amend the Child Labour (Prohibition and Regulation) Act, 1986, which prohibited the engagement of children in certain types of occupations and regulates the condition of work of children in other occupations. The draft Bill had proposed to extend the ban to all industries from the 18 that were listed in the 1986 Act.
The devil, of course, is in the contradictory details. The Bill introduces a new category of individuals called “adolescent”. An adolescent would be a person between 14 and 18 years of age. The Bill prohibits employment of these adolescents in hazardous occupations as specified (mines, inflammable substance and hazardous processes). The catch lies in the fact that the Union government can add or omit any “hazardous” occupation from the list included in the Bill. The labour ministry did not want to make elementary education a must for employment of adolescents in non-hazardous industries, since it believed that a separate law existed to guarantee education. Had the ministry insisted on a mandatory educational qualification, it would have endorsed the RTE Act. Instead, it left open a loophole.
There are some more areas where the Bill is not in tune with other laws, Bills, and policies. The Juvenile Justice (Care and Protection of Children) Bill, 2014, which will replace the Juvenile Justice (Care and Protection of Children) Act, 2000, is one such proposed law. The Juvenile Justice Bill permits juveniles between the ages of 16-18 years to be tried as adults for heinous offences. This Bill has been facing criticism over whether juveniles should be tried as adults. India is obligated to the UN Convention on the Rights of the Child which requires all signatory countries to treat every child under the age of 18 years as equal. The provision of trying a juvenile as an adult contravenes this Convention. This Bill defines a child as someone below 18 years of age, but contends that those in the 16-18 age bracket can be adults.
There’s a reason, of course, why this Bill was introduced in the aftermath of the horrific Nirbhaya incident. The Bill seeks to legally tackle children in the 16-18 age group, in conflict with law, since an increased incidence of crimes committed by them have been reported over the past few years. The Juvenile Justice Bill was introduced in Parliament by the Ministry of Women and Child Development. Ironically, it is this same ministry which is the custodian of the National Policy for Children, 2013 which recognises that a child is any person below the age of 18 years, but makes no mention of adolescents.
There are problems with other provisions of the Juvenile Justice Bill, with certain penalties not being in proportion with the enormity of the crime. For instance, the penalty for selling or trafficking a child is lower than that for offering intoxicating or psychotropic substances to a child. In fact, the Parliamentary Standing Committee, which had looked at the Child Labour Bill, had insisted on incorporating provisions to stop trafficking of children. The labour ministry had shrugged off the responsibility arguing that the issue of child trafficking and street children was under the purview of the Ministry of Women and Child Development, and that criminal offences against children were looked into by the Ministry of Home Affairs. The labour ministry seemed to have disregarded the ILO Convention on the Worst Forms of Child Labour (WFCL), which classifies trafficking among “forms of slavery or practices similar to slavery.” It is this same ministry that seeks to standardise the Child Labour Bill as per ILO benchmarks. Sigh.
Wait, that’s not all. According to the Child Labour Bill, “hazardous processes” have the same meaning as given in the Factories Act, 1948. Yet, as per the ILO's Minimum Age Convention, 1973, "the minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young person shall not be less than 18 years." The Standing Committee had felt that the labour ministry had not made any efforts to identify hazardous occupations, and instead had “haphazardly” copied from the Factories Act.
The Standing Committee had believed that reasons for entry of children into employment included poverty, neglect, social and economic exploitation, trafficking, lack of schools and loss/incapacity of parents. "All of these reasons indicate that children are forced to work due to various reasons with or without the consent of parents," it had remarked.
If the Child Labour Bill is enacted, somewhere the spirit of the law would have been lost.
