Child Labour

Poor children in India begin working at a very young and tender age. Many children have to work to help their families and some families expect their children to continue the family business at a young age. India has all along followed a proactive policy in the matter of tackling the problem of child labor. India has always stood for constitutional, statutory and developmental measures that are required to eliminate child labor in India. Indian Constitution consciously incorporated relevant provisions in the Constitution to secure compulsory universal elementary education as well as labor protection for children. Though most children begin working at a young age due to economic reasons, doing so allows them to break from some social constraints.
Children perform a variety of jobs: some work in factories, making products such as carpets and matches; others work on plantations, or in the home. For boys the type of work is very different because they often work long hours doing hard physical labor outside of the home for very small wages. The government has made efforts to prohibit child labor by enacting Child labor laws in India including the 1986 Child Labor (Prohibition and Regulation) Act that stated that children under fourteen years of age could not be employed in hazardous occupations. This act also attempted to regulate working conditions in the jobs that it permitted, and put greater emphasis on health and safety standards. However, due to cultural and economic factors, these goals remain difficult to meet. For instance, the act does nothing to protect children who perform domestic or unreported labor, which is very common in India. In almost all Indian industries girls are unrecognized laborers because they are seen as helpers and not workers. Therefore, girls are therefore not protected by the law. Children are often exploited and deprived of their rights in India, and until further measures are taken, many Indian children will continue to live in poverty.
Child labor in India is a grave and extensive problem. Children under the age of 14 are forced to work in glass-blowing, fireworks, and most commonly, carpet-making factories. While the Government of India reports about 20 million children laborers, other non-governmental organizations estimate the number to be closer to 50 million. Most prevalent in the northern part of India, the exploitation of child labor has become an accepted practice, and is viewed by the local population as necessary to overcome the extreme poverty in the region. Child labor is one of the main components of the carpet industry. Factories pay children extremely low wages, for which adults refuse to work, while forcing the youngsters to slave under perilous and unhygienic labor conditions. Many of these children are migrant workers, the majority coming from northern India, who are sent away by their families to earn an income sent directly home. Thus, children are forced to endure the despicable conditions of the carpet factories, as their families depend on their wages. The situation of the children at the factories is desperate. Most work around 12 hours a day, with only small breaks for meals. Ill-nourished, the children are very often fed only minimal staples. The vast majority of migrant child workers who cannot return home at night sleep alongside of their loom, further inviting sickness and poor health. Taking aggressive action to eliminate this problem is difficult in a nation where 75 percent of the population lives in rural areas, most often stricken by poverty. Children are viewed as a form of economic security in this desolate setting, necessary to help supplement their families’ income. Parents often sacrifice their children’s education, as offspring are often expected to uphold their roles as wage-earning members of their clan.
The Indian Government has taken some steps to alleviate this monumental problem. In 1989, India invoked a law that made the employment of children under age 14 illegal, except in family-owned factories. However, this law is rarely followed, and does not apply to the employment of family members. Thus, factories often circumvent the law through claims of hiring distant family. Also, in rural areas, there are few enforcement mechanisms, and punishment for factories violating the mandate is minimal, if not nonexistent.
Legal action taken against the proliferation of child labor often produces few results. Laws against such abuses have little effect in a nation where this abhorred practice is accepted as being necessary for poor families to earn an income. Thus, an extensive reform process is necessary to eliminate the proliferation of child labor abuses in India which strives to end the desperate poverty in the nation. Changing the structure of the workforce and hiring the high number of currently unemployed adults in greatly improved work conditions is only the first step in this lengthy process. New labor standards and wages must be adopted and medical examinations and minimum nutrition requirements must be established in India. Establishing schools and eliminating the rampant illiteracy that plagues the country would work to preserve structural changes. However, these changes cannot be accomplished immediately. Pressure from the international community, especially the United States Government, is absolutely necessary to bring about change in India.

THE CHILD LABOUR (PROHIBITION AND REGUALTION) ACT, 1986 AND RULES

(Act No. 61 of 1986)

[23rd December, 1986]

Be it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:

Comments

Social and beneficial legislation – Social legislation is designed to protect the interest of a class of society who, because of their economic conditions, deserves such protection. With a view to pass the test of reasonable classification there must exist intelligible differentia between persons or thing grouped together from those who have been left out and there must by a reasonable nexus with the object to be achieved by the legislation.

The Court must strive to so interpret the statute as to protect and advance the object and purpose of enactment. Any narrow or technical interpretation of the provisions would defeat the legislative policy. The Court must, therefore, keep the legislative policy in mind in applying the provisions of the Act to the facts of the case.

PART I

Preliminary

1.  Short title, extent and commencement – (1) This Act may be called the Child Labour (Prohibition and Regulation) Act, 1986.

  1. It extends to the whole of India.

(3) The provisions of this Act, other then Part III, shall come into force at once, and Part III shall come into force on such date as the Central Government may, by notification in the official Gazette, appoint, and different dates may be appointed for different States and for different classes of establishments.

Comment

May and shall – Where the Legislature uses two words “may” and “shall” in two different parts of the same provision, prima facie it would appear that the Legislature manifested its intension to make one part directory and another mandatory. But that by itself is not decisive. The power of the Court still to ascertain the real intension of the Legislature by carefully examining the scope of statute to find out whether the provision is directory or mandatory remains unimpaired even where both the words are used in the same provision.

In interpreting the provisions the exercise undertaken by the Court is to make explicit the intention of the Legislative which enacted the legislation. It is not for the Court to reframe the legislation for the very good reason that the powers to “legislate” have not been conferred on the Court.

In order to sustain the presumption of constitutionality of a legislative measure, the Court can take into consideration matters of common knowledge, matters of common report, the history of the times and also assume every state of facts which can be conceived existing at the time of the legislation.

2. Definitions – In this Act, unless the context otherwise requires,

  1. “appropriate Government” means, in relation to an establishment under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government;
  2. “child“ means a person who has not completed his fourteenth year of age;
  3. “day” means a period of twenty-four hours beginning at midnight;
  4. “establishment” includes a shop, commercial establishment, work-shop, farm, residential hotel, restaurant, eating-house, theatre or other place of public amusement or entertainment;
  5. “family” in relation to an occupier, means the individual, the wife or husband, as the case may be, of such individual, and their children, brother or sister of such individual;
  6. “occupier”, in relation to an establishment or a workshop, means the person who has the ultimate control over the affairs of the establishment or workshop;
  7. “port authority” means any authority administering a port;
  8. “prescribed” means prescribed by rules made under Sec.18;
  9. “week” means a period of seven days beginning at midnight on Saturday night or such other night as may be approved in writing for a particular area by the Inspector;
  10. “workshop” means any premises (including the precincts thereof) wherein any industrial process in carried on, but does not include any premises to which the provisions of Sec. 67 of the Factories Act, 1948 (63 of 1948), for the time being, apply.

Comments

This section defines the various words and expressions occurring in the Act.

Interpretation of section – The Court can merely interpret the section; it cannot re-write, re-cast or re-design the section.

Ambiguous expression – Courts must find out the literal meaning of the expression in the task of construction. In doing so if the expressions are ambiguous then the construction that fulfils the objects of the legislation must provide the key to the meaning. Courts must not make mockery of legislation and should take a constructive approach to fulfil the purpose and for that purpose, if necessary, iron out the creases.

PART II

Prohibition of Employment of Children in certain
Occupations and Processes

3. Prohibition of employment of children in certain occupations and processes – No child shall be employed or permitted to work 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 is carried on :

Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by or receiving assistance or recognition from, Government.

Comment

This section imposes prohibition on employment of children in the occupation and processes specified in the Schedule.

Proviso – A proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself.

4. Power to amend the Schedule – The Central Government, after giving by notification in the official Gazette, not less than three months’ notice of its intention so to do, may, by like notification, add any occupation or process to the Schedule and thereupon the Schedule shall be deemed to have been amended accordingly.

Comment

This section empowers the Central Government to amend the Schedule so as to include therein any occupation or process considered necessary.

Construction of a section – it is en elementary rule that construction of a section is to be made of all parts together. It is not permissible to omit any part of it. For, the principle that the statute must be read as a whole is equally applicable to different part of the same section.

5. Child Labour Technical Advisory Committee – (1) The Central Government may, by notification is in official Gazette, constitute an advisory committee to be called the Child Labour Technical Advisory Committee (hereinafter in this section referred to as the Committee) to advise the Central Government for the purpose of addition of occupations and processes to the Schedule.

(2) The Committee shall consist of a Chairman and such other members not exceeding ten, as may be appointed by the Central Government.

(3) The Committee shall meet as often as it may consider necessary and shall have power to regulate its own procedure.

(4) The Committee may, if it deems it necessary so to do, constitute one or more sub-committees and may appoint to any such sub-committee, whether generally or for the consideration of any particular matter, any person who is not a member of the Committee.

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