The New Law Banning Child Labour is No Ban At All

The amendment seeks to abolish all forms of child labour, but includes a proviso that allows children up to the age of 14 years to work after school hours in 'family enterprises'.

A child working in a loom. Credit: WikimediaCommons

A child working in a loom. Credit: Wikimedia Commons

On July 19, 2016 the Rajya Sabha passed a Bill to amend the Child Labour (Prohibition and Regulation) Act, 1986, which will soon be placed before the Lok Sabha for its final enactment as the ‘Child and Adolescent Labour (Prohibition and Regulation) Act.

The amendment prohibits the engagement of children below the age of 14 in all occupations and processes so that they are able to enjoy their fundamental right to education under the Right of Children to Free and Compulsory Education Act of 2009.

Further, it extends to cover adolescent children in the 14-18 age group, which number about 32.3 million according to the 2011 census for 15-19 age group. The Bill also makes engaging child labour a cognisable offence, punishable by imprisonment for a term of not less than six months and up to two years, or by a fine of not less than Rs 20,000 and up to 50,000 or both.

We should be celebrating the passage of the Bill as a historic moment for children in India that could radically transform their lives. However, in effect, it is a half-hearted expression of the state’s attitude towards its children, their childhood and dignity.

Although the Bill abolishes all forms of child labour to enable children to enjoy their right to education up to 14 years, it also introduces a proviso allowing children of up to 14 years to work after school hours to help the family in fields, do home-based work or work in a forest.

Even as it extends the Act to cover adolescent children, all it does, in effect, is benefit a small number engaged in certain specific forms of child labour.

Perpetuating exploitation

The proviso of family work is seemingly benign about which, apparently, there need not be any disagreement.

In all families, rich and poor, is it not desirable and acceptable that children help in a family’s daily chores? Why is it that family work is mentioned and made explicit under this amendment?

It is because the Bill does not seek to justify routine family work, but the work that millions of children render in home-based units of beedi rolling, bindi and bangle production, agarbatti and papad making, zari and embroidery work, packing and sticking labels, chappal making, handicrafts and the manufacturing of several other products.

This is the work that requires the entire family to participate to meet the demands of contractors who supply them with the material and procure the finished product on a piece-rate basis.

Such work is a form of hidden exploitation under unregulated labour conditions in which numerous children from deprived and marginalised communities are engaged.

It is the kind of work in which poor landholders are tied to the creditors who provide them with seeds and fertilisers, often forcing them into a long-term contract on adverse terms and conditions which forces the entire family to work as cheap labour on their own farms.

Children perforce get trapped in this vicious cycle of oppression and work as farm labour along with the entire family especially during peak seasons at the cost of education.

It is the kind of work that starts before and after school hours until late in the night at the cost of children’s health until they can no longer concentrate in the classroom or participate in school and are branded as slow learners. Unable to straddle both school and work, these children are forced to give up the former.

While conventional wisdom blames the quality of education for the problem of retention of children in schools, it is often ignored that children drop out because they are unable to cope with going to the school and working at home.

Such work incorporates children into the family occupation and thus somehow maintains the status quo and perpetuates caste hierarchy. Taken to its logical conclusion, it implies that it is best for the children to continue in their family profession – a potter’s child ends up as a potter, a weaver’s child a weaver and an agricultural labourer’s child a farm worker.

This is the kind of work that legalises the exploitation of children engaged in family-based enterprises, consequently making child labour invisible.

Do children really benefit?

Being insensitive to the challenges faced by the most deprived castes and communities, the amendment defeats its very purpose – enabling children to enjoy their right to education.

By justifying in law the participation of children in work before and after school hours, the Bill denies them the time and space to develop and grow as citizens with similar choices and opportunities that children from affluent families enjoy. Such a proviso would only contribute towards fostering existing inequalities and discriminatory practices in society.

It contravenes the equitable right of all children to a childhood and their entitlements to live a life with dignity as guaranteed by the constitution and the the UN Convention on the Rights of the Child, to which India is a signatory.

The amendment to the Act should have instead enabled children to engage in activities, before and after school hours, that foster their active participation in school as a student and enhances their overall self-esteem and dignity.

In whose interest is the amendment?

Where does this resistance to completely withdrawing children from work actually come from? With the enrolment of 99% of children in schools, it is evident that parents from deprived communities aspire to educate their children and are making enormous sacrifices to keep them in school.

The pressure to incorporate a proviso that allows children to work after school hours is certainly not from the poor. Those who benefit from this are the employers and contractors who make their profits over home-based units in the informal sector.

Is it then the influence of the private sector, which is dependent on the workforce in a home-based unit? Or is it our policymakers who are insensitive to the rights of all children and insist on perpetuating traditional skills and crafts, and who would never think twice about educating their own children?

Unfair to adolescent child labour

The amendment has also inserted a new section that prohibits the employment of adolescents – children in the age group of 14-18 years. The extension of age under the Act should be a viewed as a positive step.

However, it prohibits child labour only in mines, in the production of inflammable substances or explosives and the hazardous processes assigned with it in clause of the Factories Act, 1948. Thus, it actually gives a legal sanction for the employment of adolescent children in all other sectors.

It is totally oblivious to the extent of exploitation and suffering of innumerable adolescent children, who move from working on construction sites, to sweat shops and farms and so on, and who are trapped by the hardships of fulfilling their basic needs and struggle for survival.

Such adolescent children are often unhealthy, yet continue to work till they become completely incapacitated.

The burden of the state’s inability to provide social protection, food security, employment, universal health care, access to credit and financial support to their parents falls on adolescent children.

Thus the cost of the state’s inaction results in entire generations of adolescent children being further marginalised and excluded from their rightful share of the state’s resources and action.

A wasted opportunity

In the statement of objects and reasons in the Bill for prohibiting employment of adolescents in hazardous occupations and processes and regulating their conditions of service, it is stated that it would be in line with ILO Convention 138 on Minimum Age (1973) and Convention 182 on Worst Forms of Child Labour (1999).

India and Estonia are the two countries that are yet to ratify Convention 182 and are among the 15 countries that are yet to ratify Convention 138.

Addressing the complex issue of releasing adolescent children from work requires a whole-hearted legal framework and not a token effort to satisfy an international obligation.

Thanks to the clause allowing children to work after school hours “in the family” and rationalising adolescent child labour by law, Indian children would once again lose their battle for a life of dignity and freedom.

Indeed, it is a lost opportunity to provide justice to the most marginalised children in India’s democracy.

It is a shame that our parliamentarians have not risen to the occasion and opposed the proviso for allowing children to work after school hours and genuinely release all children, including adolescents, from the labour force. Ending child labour once and for all and making child labour part of India’s history still remains a mirage.

Shantha Sinha is a former head of the National Commission for the Protection of Child Rights