AGAINST THE MOTION

Talking about the year of 1985 wherein, a NGO for its very first time introduced a draft bill according to which the concept of regulation of working conditions, rather than complete prohibition of child labour was brought in. On one hand, people believed that it is not at all possible to eradicate child labor from this country, but every move taken regarding this concept should be as if it is to be eliminated.

 The other group felt that ‘child labour’ is a grinding reality in our society and since the future can always be taken care of, steps should be implemented to avoid their further exploitation. This draft bill was taken into consideration and was then transformed into the Child Labour (Prohibition and Regulation) Act 1986. Recently however, the government made some changes after which it is now known as the implementation of child labour (prohibition and regulation) amendment act, 2016.

The PIB release that released on May 16, 2015 says - However, while considering a total prohibition on the employment of child, it would be prudent to also keep in mind the country’s social fabric and socio-economic conditions. In a large number of families, children help their parents in their occupations like agriculture, artisanship etc. and while helping the parents, children also learn the basics of occupations. 

Therefore, striking a balance between the need for education for a child and the reality of the socio-economic condition and social fabric in the country, the Cabinet has approved that a child can help his family or family enterprise, which is other than any hazardous occupation or process, after his school hours or during vacation”. 

The same debate came in 1985-86 also, which was later concluded by stating that children are allowed to work in family enterprises. The only exception that lies in the newly changed implementation of child labour (prohibition and regulation) amendment act, 2016 is that the family enterprises in which the child is working should not be hazardous. But then again, there lies a loophole in this law.

 India is a diverse country with complex relationship trees.The new bill introduced by the government continues to allow children to work in the family enterprises; however, the term ‘family’ in India is still very extensive and ambiguous leading to its wide misuse. The term ‘family’ is defined in the proposed bill as the child’s mother, father, brother, sister and father’s sister and brother and mother’s sister and brother. The bill utilizes the word ‘help’ in order to state a child’s inclusion into any family enterprise. The duration however should be after the school hours, or during vacations.

 India is a country which is feudal in nature. At the same time,  caste driven Indian society,is what covers the major portion. ‘Child labour’ is an evil on the society which needs to be curbed down. But due to its excessive normalization, there is neither shock nor shame. 

Children will always support their families or ‘help’ their parents as they do in the present time. The problem lies in the inclusion of this provision in the law, but as specified earlier too, we are well aware that the notion of family is a very wide, vague and ambiguous concept in India. The past experience related to the implementation of this law had a similar provision in this respect. Section 3 of the CLPRA, 1986 clearly stated that this section was often misused to tie the children to home based work and exploitation.

Child trafficking is so common these days that those traffickers often claim that the children working are a part of the ‘family’. In the absence of birth registrations and certificates, it is not at all possible to discover whether or not a child is really part of the family or not. If people say medical tests can remove that problem, is it really possible in a country like India to conduct medical tests where the population is on the verge of leaving China behind?

The answer is a straight NO! In addition to this, many families may host children from the extended family as part of informal kinship care. 

The exception of Section 3 in this law, will again be acting as a loophole as the caste system will continue to exist. For example, a potter's son/daughter will be a potter; a weaver's child will be a weaver and so on. A vicious circle will be formed making it difficult for the poor to come out. Dalit community will be the worst affected as Dalits are the ones who are at the bottom of the caste hierarchy. Although, there have been numerous arguments, the Ministry officials continue to reinstate their say of this explanation being too far!

The Parliamentary Standing Committee clearly explained how the ministry is itself creating loopholes in the law. The only question now arises is that how are we going to distinguish between the children who are merely helping their parents and those who are working to supplement the family income. It is very important to draw a difference between these two in order to prevent criminalization of parents and families. If it is not done, it will just become another law which the general public would be able to misuse; just like the Dowry law.

A quick look at the government’s own statistics of prosecution tells us how limited the use of the law has been in the past:

Details of Action Taken Against Employers Under the CLPRA, 1986
Year	Violations	Prosecutions	Convictions
2011	14423	6017	984
2012	12052	5018	1144
2013	8991	3563	1061
2014	1027	792	754

Even if we manage to define the terms such as ‘family’ and ‘child labour’, we still can’t ignore the fact that there is absolutely no solution to the question of distinguishing between the two sets of children. Not only this, if children are allowed to work after their school hours, it could have an adverse affect on their health as rest and recreational activities are equally necessary for the physical and cognitive development as their work is.

 Ensuring a child’s overall development is always linked with the some rest which will ultimately get eliminated due to children being allowed to work even after school. More work even after school hours/vacations would create a direct impact on their regular schedules too.

Yet again there comes another loophole of defining the ‘hazardous occupations’. Earlier, there were 16 occupations and 65 processes which were listed as hazardous in the 1986 law which have recently been replaced with mines, inflammable substance and hazardous processes which have the meaning assigned to it in clause (cb) of the Factories Act, 1948. 

Since there has been a reduction in list of hazardous occupations/works, it becomes all the more difficult to eliminate the children from working in hotels and dhabas. This law disregards the fact that every day new ‘occupations’ are coming up which are equally hazardous and dangerous as stated in the list.

Even if such loopholes are accepted by this country, what about the children who lie between the age-group of 14-18 years? Isn’t it high time that we finish the prolonged silence on the employment of children above the age of 14 years and allow a required distinction between ‘hazardous’ and ‘non-hazardous’ sectors of employment?

 When are we going to consider the rights of the children? Even after the amendment, the law still remains mum on the issue of children aged between 14-18 years. It is quite evident from this amendment that the main objective of the government is to create jobs in order to meet the manufacturing requirements. The focus from the protection of children has clearly been shifted. This law keeps alive the unregulated form of labor wherein corporates are not going to have to deal with labor unions.

 When we see production being pushed into the homes, this is nothing but keeping the un-scrutinized and the unregulated informalization of labour alive, so that corporates can ‘make in India’ without having to deal with the labour unions and the labour laws. There is absolutely no provision provided in the law as to who is to be held responsible in order to regulate the entry of children into the work force.

This law is happy enough to place the entire burden on the Dalits, Muslims, and most importantly the tribal families in the name of ‘The Make in India’ project. Shouldn’t a country jostle for making the children a priority before any project and hidden agenda?

Laws can be used to lead the change and this is one such opportunity that has come after 29 years. Let us not lose it.  

 REFERENCES

Government of India, Ministry Of Labour and Employment, Lok Sabha, Unstarred Question No.1285, Answered on 01.12.2014, Conviction under Child Labour Laws

Standing Committee on Labour (2013-2014) Fifteenth Lok Sabha Ministry Of Labour And Employment The Child Labour (Prohibition And Regulation) Amendment Bill, 2012 Fortieth Report.

ABOUT THE WRITER:

Bhavyata is a second year student of the University Institute of Legal Studies, Panjab University.She has won the written debate competition organised by legal daftar.#KUDOS