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The Plantations Labour Act, 1951
Article 32 in The Constitution Of India 1949
Article 39 in The Constitution Of India 1949
Bandhua Mukti Morcha vs Union Of India And Ors on 13 August, 1991
Article 21 in The Constitution Of India 1949

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Central India Law Quarterly
Child Labour In India : A Socio-Legal Study
CHILD LABOUR IN INDIA : A SOCIO-LEGAL STUDY Dr.8inayak Patnaik* , The prevalence of child labour is as old as existence of human civilization, where one can notice the use of children arid more specifically girlchild in one form orthe other, such as slaves, domestic servants, ect., mostly!n unorganised'sectors like, shops; hotels dhabas,' workshops, and other small establishments where labour laws are not applicable. ' , -, 2. On the advent of industrialisation and with the establishment of comples industries,there arose the necessity Of 'raiSing labour and incres;:;ing productivity and national income and in the;process the children were used as the most convenient section in v~rious organised is and unorga,nised sectors: There no small scale industry where children are not used as labOur. More'lhan200 millior; child labou'r are noticed by United Nationat'labour organisations in the present industrial sOCiety throughout he w O r l d . ) ". 3. Many organised and unorganisedsectors perler'child wOrkers, to' earn more profits by paying less wages to the children. When COmpared with adult Workers these child labour tumoutmore work for less wages andwhen compared With other developing countries, child labour is highest in Inidia. Governm~nt is accepting"on the basis of statistical' survey that 10% of 'the total child 'labour. (According to 1981 census the total number of childreb are 263 milliOn}. Under the' present socio- economic conditions of our country, it is very diffieult for the Government provide alternative livelihoOd and education to these child labour. 4. Children are considered as the nation's ·supremely important national asset'.' The'future of the country largely depends upon ,the children, child marriage,child abuse,ect. Have 'always been attracting the attention of the human mass across the universe. But it is only during the last two decades that the sard issues have beeri brought on tnenational agenda and have been debated by the jurists, social workers and voluntary organisations but' only half-l1earted 'efforts 'have been made to devisea real means to combat the ;prOblems of children, specifically the child labour. Despite what has been said,written and done India . .~. " ." Ph,O.(Law), Ph.O,(Ub& Infac) Lingara LaV' wtleglil Berhampur (Orissa) ·218 CENTRAL.. INDI,A LAW QUARTERLY [2000 c~tltiOues to remain as a c0411try in the,world with highest number of child labOUrEtrs t,hough it is difficult to put ~x~cdy the overaUmagnitude of • ',...f ~ , ..,oj .._, • .. \ . . . . ,. .. __ , • _, .. .. " ... :. .. .. • .. .. .. . " ..' .. .. "" < .. ~ , .. chi.'9Iabourinlrtdiaon.~ccountofp(edominance of, U(\organisectsectors. AC~rding to report'Qf 1981. census the figure of chi.ld labOur inlndi~, i~ put at .13;64' mi.J\iP.n. 10 ~s· ag,!n~t ....•7;"milPo.". ,as .... . .. released on the eve of Children's Day estimated ·the chjld,•. 44 1 . s ,A r.e..s.•·. .p.• .o.,.rt. .. p~r.19np.ensu million. But the figure of child labour in India will be more than 44 minioh. There islaC~'o1 natio~il willte> deal: with,.the is&~es. of child labour. Several.commls~ns i~aYe b~en ap'pqinted, iS$J~hax~ beef;' discu~s~d a.oct rec()mm~ndations . have .b,een ,mad~ but .only·. to. ~ignor¢d at.,a subsequent $ta~. 'The is~ue.ofchild,labourOas .always 'been thrown ~ktp, ti\e, ~9kgrouncir.riercil~~!V,and~t ,ls'\.vhVJiil toda)'j.the~e Js "9 compr;ehensive fi)OlicV embr~~jf'9' all~JWds ,WJ}P are in t~ helm.~f the affairs jn.!~tsh,o~~$ight~ness fe~t1J1a~ .ct,\i1d laqpuris abl1~,ecqnomi~ necessity and term child labour as a harsh reality or necessary evil. They feet that it is' the poverty, unemployment, population growth and illiteracy that ~d to ~i1d labour. ~ut. this is,not~"only fact The otherf~Rt which iscoro~ry to it is thatq~i1dlat?o,ur also~rnethe'cau~,otPQV~rtY, unemployment, populalton aJur at itslpw~t pr~etivity quite often..slpps the more pr~tiv.e P'?w,er~t tQeadulthQqq which means ineffiQient and insutfjc~nt u~lis~tion of,I"bQurP9Wer which ultimately r,@~~ltsd in high arTlQUOt of fPOOomic loss to the cOl,lntry. Ch,ild labour ~ le@ ~,unemploymQllt pecau~~, if 10 miU~ chil9ren ,ar~ jp . _servitude thilit,WilUmplyJhat, 10.million people are:un~~~Yed adl,l!ts. Thus it is next to impossibility to bring down unemployment without curbing ¢hild."W. as the j()b AAPQrtuQities\fihich ~r~ creat~every year are .~f~ .given to,'childrefl' because.·the chitdren, fQrmtbe cheapest a~ most vUlner~blesourceof:huma" IabqJ,lr" ' . : '.... - . . .~:" - : "" ' - - (~ , 5. Child lat:x>ur is acause,fQr popWa«of\ gro~h because the poor families consider,. toe childrellas, hands. to work. Ihus the chilcjren becQlTle an, incentive for, Iar"" tpmilies. Child servit.yde Js a ~~~of illiteraqy.Forinstan,ce, in t~ a.r~s, ,where the job,opport~n~ti'$fof cNldren are more. in those t;treas,the dropouts in t~ ,SehO()I are,' more. Thus the level of i1iteracycannot be lowered without eradicatring child labOur from the land. Child labour not only leadid() poverty, illiteracy, unemployment and,papulatiol'lgr<>wthbut alsoll1terferes withth~"mental 1. <.;entre ot Cooem tor child laboUr, Child LabOur Heport (199'Z). VoI.XIII] .' CHILD I:.ABduA IN (NDIA' and physical development of the child which in consequence breaks dovtnthl;lJamily f~ricandsul;tsequently the. socialstructure. . .' -\ ' '. ». ", . - ,.' '.' " " " :-,'........ .-- .. ......... -; .... ". .." ~ ... .." . if,,'r':,_.":-'" ".,'.. .'.. ,':,:": ',' ... ;~:i!_,' ,t,', . ;-" 6..... In ,view otth~faets ar;ld Sfir~umstaf"!ces, stated, above the Indittn . Cqnst~lJtion •hasri1adesever~lprci~l$lon~for welfare of the'¢hildren'and piQh~UP",pl qhu~'I~~~tr A~i91~~5(~!:;'~~1~st~!,~ate !p ~~~ ~P~l~1 provlSJonsfor-: chddr.~n, .Artjc~23,p,[QhlDfts traff,~ ,In OUQ'lsn·'bel"g. and' forced labour. Article ,24pr.oijipits tmlPI()ymenfb~ childfenbelowthe age of :14 year~,in faetorie~.lllirie$ .arid'other•. hazardqlJs'oecupations. Article 39 (e) directs the State tosaf~i{i~r~tn~Jefider~Q~1qt chffdr~h. Article 39' (f) directs the State to '(i) secure facilities fOr. the healthY dEwelopment'of childr~n ,anQ (~~pr.o,t~;9t'1childl)og~ :cmd. X9IJth a~~i,~'t .e~Rloitat,~n. Artie" 46, direct~ toe .~~te to aQst co~~ls.0l)', §du£~tion 10 all qlJUdtte" UJJ,to tt:teag.e Q1. 14 ye~~s~ . . '.:': :f ~,L.·_ ',r,:: _j,'n, _ _ ," ".\~'~r,>:,· :,',r c'. ;;-;:" __, ' _.i 7. Bes~~$ ttie. cOll~litHtiott~I' PfoX\sionst.t\(~N~tional Policy'for Children2 in 1974 made'a commitment that'the children shall tie . prQtecteQ a~f1stcruEJJty. ," $j)lo.itation anQ.nEJglect.. . , - - .' .,,'. ,:~,\, '.'- .. " ; , < '..:. -.,":,',', . '.- " 8 The?workf&~lafkti~rtony'the'};~rVjVal •• Protectionand o.e~~r~pmeOtoLChild'r~n.1S~;mad~ promise to protect the,child and ': . -'J,: - - : , _ . " " , , . f , i .. '-'-(' _ " , I ,';.,.,'" a /:' '''".".\'. _ " '. ':' ,: ' ...: toel:l~' ~Ol'QlabQUF~rticle'ia~:pL the Conveption or, th~ Rights ()f 'the. Shil~.1 ~~9recs~~ise~ Jheri9h.t~?f th.~:,.crild narn~ly . protection aQfi~,st ecol1o{nlc~te Q cODclUdeq:thaJchi,1Q '~boyr j,9.allJorms anduri~r~.<:lrcU"1stances rri\J~t bepr.ohib~ed. ' , . ,. ' . .t ; , ;" ;;>,,1 ".10.. ';$~~~ef.aele{li.siaJiohhave',b~e~passed c8neerning. child labour With· . r~g~rgJ(). minimumag~, rnini01Um'.wa~e.~nd h~zardOys e,mpldyment. Reg~rd~nQ .. .rnifliTJ'm ,,~e. th~r~,has b~en ,.io lJnif~r~ity in the Acts.,For example'accordiog to 'Employment of Child Act, 1938 children befow'15 . prohibited from employment· whereas below 14.years~s ..the provision'in Apprentice Act. 1961 and below 12 y~ar.s ill Plan~ation ,< 2. government of 1nd"I8.Natlonal Policy lor Children. 22nd Aug 1974 220 CENTRAL INDIA LAW QUARTERLY [2000 Labour Act, 1951. 11. As regards the minimum wage, the Minimum Wages Act, 1948,' makes, provision for fixation of minimum wage for various occupations. In the case of M.e. MehtaV. State of TamU Nadu and others,3 the Supreme Court held that the child lebourers must be' given at least eoelo of' the wage of adults. It is also observed that in most of the'States t~e children' i i ' are paid 50 to 70% of their adult · , ' , salary' even though the I counterpart's . ,., chUdren do the same work like ad4.It~.' I,is felt therefore that the minimum wage which is applicable to adUltvVorkers be also made applicable to children as t~e later are equall¥,competent'like former. 12. It may be notedhere that where there is a programme for abolition of 'chUd labour there should be no any kind of emphasis on wages regarding child labour. However, the wages as suggested can be' implemented for the children in the process of achieVing abolition of child labour i.e. the period of transition from child labour to no chUdlabour. 13. With regard to hazafdoos employment there has been no satisfactory definition fo~ the term -Hazardous." Wherever there is any clarification' regarding this term this is aIW,ys linked only to physical hazards which is a narrow view,because accordi'i1g to Article 32 of the Convention' on the Rights of the Child Hazards'Include not only physical but also mental, spiritual and motal. There-fore amendl'hents should be made accordingly in the concerned ~ttitutes whUe defining the term "Hazardous" to include physical, mental, splritual & moral ,hazardS. 14. The laws whic!l have been passed and the amendments which are effected wUI be of no effect unless these' are implemented' in true spirit, ~ause social welfare laws are laWS inaction. Incase there is no strict implementation the individual can file a writ pet~ion under Article 32 of the constitution where even compensation can be awarded,4 arid further un<:ier section 166 of Indian Penal.Code 1860 where there is provision for personal offiCer liability which a.,ets as a,pqwerful weapon against corrupt and ineffective inspectors.' ReJ;Jarding punishment to the employers the penalties which.are provided in various legislation are not effective as the 3. A.!. R. 1991 S.C. "17. 4. Nilabati.Qeherav. State.. f Orissa, (1993) 2 S.C.C. 746, See also Rudul Sah v. State o of Bihar, (1983) 4 S.C.C. 141. VoI.XIII] CHtlD:lABOUA IN INDIA 221 employer has a feeling that he can rather pay some amount~~nalW rather than forego child labourers. Thus to OV~(~0rT\e any. kinQ ,of erroneous employment of child labour employers must be penalised with stiff penalties.- The Indian \Judiciary is very much .poised against the forced labour and employment of child and has come out with social , welfare measures. 15., The Supfeme Cqurt ha, always emphasised that the righttp lite, mentil;>nedin Article 21 of Jndian Constitution inch,J,des the right to Ii~ with human dignity.5 . The scope of human dignity includes the basic:; conditions of, work, fair wage and other necessary corollaries,'basic educatiofl,6 ~c. ' 16. In the case of P.lJ.D.R.V. Union.,of India7 the courtpronibited any kind of violation of article 17,23 and 24 and has further laid emphasis on, observance of f\Jnd1!imentaJ. rights by private. indivic;iuals and spoke strongly anainst any form of forced labour. In M.e. Mehta V" State of Tamil Nadu and Others,8 the court directed to obey the spirit of the constitution which, believes .in the, protection of forma~ve ,years of the child. Thus the judici~ltrend is outright for the children and agaiOl?t any . kind of exploitation of them.. 17. Keeping in view the magnitude of the problems faced by the children and the causes of the said problems the following suggestions are made to save the children from the .clut~s of ,8varicil)ljs and crafty employers and to pr()vid$:, them reUef so that trns valuable human resource-will not go astray in future. 18. In order to achieve this'PUrJ50seit is viewed that a kind of ~ive legislatipn is inevitablEl ~hichmust b.e passed by the concerned State and st\Q,uld include, the folfowi~g"suggestions. 5. "Francis Corall.e v. Union Territory of Delhi, A.I.A. 1981 S.C. 746. See also Vincent v. Union of Inditt. (1987) 2 S.C.C. ' 6 5 . ' " ., 6. Mahini Jainv. State of KamatSka, (1992)' 3 S:C.C. 666. 7. A.I.R. '1982 S.C. 1473. " See also BandhlJ(l Mukti Martha v. Union of India, A.I.A. 1984s.C. 802. 8. Supra, Fn, 3. 222 .CENTRAL INDIALAWQUARTERLY [2000 SUggEtStions i. Chird WeffareProgrammes . 19.. l'ntthe totaJ;probibltion Ofehild labour i.e. ·during th&period 'of transitiOn from, chikJ laboUr to no .child. labour,,"'the. St$te should ·take certainadhoc measures to reduce. the precarious predicarnentof·the children. It is therefOre suggested that thf) State must adhere to elaborate child welfare programmes namely (It provision of health care.and medfC8f :tre~nt;i {b)provisk5ri at plaYing facilities (c).prDvisiQAof stipends to working children. '. a) Health care'facilitfe8·: The mobile hoIpitalsystem ShOufdbe introduced' to take care Of·the·tlealth problerns"Ofworking chlf4ren' and provide them medicine and treatment free of cost or at the cost of management. Alternately medical card should be provided by file State Medical Department'to each child whO can get lree' medical treatment and' therecoghised' GoYl. HosPitals" onproductJon' of the medieat card. b) Playing Facilities : It is 'suggested that the SPorts Council of the State shOuld open branches of Sports Council in' different townS· and district head..quarters so that these children get themselVes' inYolvedin child sp<)rts like volleyball,kabadi, slow racing, jumping, etc. at the end of the day; .,'r c). Stipend.: It is a veryimportantmissionthattheGovt.shoutd· grant stipends to these children wh6areunderabj8Ct poverty, so that this will stop their drift to the work places anc:J lead ft'leminto the SChOof. II} Ee. . . .hment ofF. J.eslel.~~" ,.". "I:. _," - } ',:,'; ,,', '.'.:.':., , t ; · , . _ '; _ i_' The State Bar Council shOUld. make.necessary ~rrange~nts for providing free counselling to the working children. Besic:tes this the council should also organise meetings and seminars on the need of passing necessary legislation on child labourto stop their pitiless exploitation. iii. Education Facilities Once the children are emPlOyed tt$ 'opportunity to receiv&any formal equcatipn is ~utomaticaHy closed.. In$p~ acme constituti,onaI mandate' and" judicial decisions for free'andcompulsory··education· to the VQI.XHI] CHILD LABOUR IN INDIA, 223 ·c;hildre~the same, is,always denied .to them once.theyare employed. It is the..ore .suggested '., that the ,State mustopen moming. and evening $Cho.oIs where suchwof'king d'lildrencan take up/their educationfr..'of cost and thus will have access to educational opportunities. To increase the enrolment in schools" incentives should be provided to children in the form of free books, dress, stipends, nutritious meals upto the age of 14 yea~. Iv. Regi*tratlon oftndustrlal UnitS. tt,issuggested that all the industrial units;:jn the State-mest be registe~and this shouldbe mandatory. v. Minimum hoUrs C)f Work The proposed 'legislation should regulate the minimum hours' of WOrkfofQbjIdAM\~ dlferttr,rtinctustries.ltis suggested that tbe night wOrk 8hOtJ1dbe totally, banned ,and the 'day work for the children should. not exceed six hoursa day with I'eCeS&braek. vI. Recess breaks , .' It is suggested that the recess breaks must be sufficiently lengthened and ttlft law' must take thildaet into congisanceso.1hatthechildren will get .tifl,\e to take meals or tiffin and take rest for sometime: to have a sigh of relief.,and fulfilJhe physiologicalanc'psychotogical needs. vii. Voluntary organisationsfor Welfare of Working ChUdren . . " " "~ -".'t", ,;_",'~,i"t;,.,'/'_'· The main cause of exploitation of chifd labour is that they are not an organised entity. It is therefQre.suggested that the voluntaryorganisations should c~, forward to protectthe children from the exploitation' by their employers and ensure welfare of chiktlabour~ viII. seminara .ndW()rb,,,~P8.. " The. sotlal wetfare.'otganlsations· and trade unions in collaboration with the employers of different indUstnes. shol.lld· organise ,'semlnars, workshops, symposia, etc. fortlXchange .~, vi~.regarding ttle need to take suitable ~ures for betterment' of the working children. " JX.~"'.~onco. gOod.. WCH'kIIfo ~~.on. < , . ,,- - " .' ,. " . •' For'",e ()venillec6nom16 devef~tof a eauntry its human resources 224 CENTRAL INDIA LAW QUARTERLY [2000 are to be preserved. It is for this reason the proposed protective legislation must make provisions for' construction of -well ventilated and properly Hghted work places with bath and toilet facilities. drinking water facilities. etc. x. Minimulll Wages The wages have a great influence on the workers and therefore it should be fixed in accordance with.~their requ.iJ:e~"tsvis~a·vis the ~rk done. So the legislators must see that the children do not get less wages than their adult workers for the same quantum and kind of work. There should be provision in the law 10r stiff penalties to the employers who violate the payment of minimum fixed wage. -: xl. Public Awareness The society shOuld beaware of ·the plight of child labour and it is only then that there wilLbe an end to child labour. Therefore it is suggested that public awareness on the problems faced by the children should be generated through various mass media. xii. Punishment to,the Employers ,. _It is suggesteCif that separate enforcement should be established to . implement the protective legislation..made bY. the State and deterrent punishments should be provided for' violation of such protective legislation. 11 xiii. Anti-poverty Progra~mes ,Poverty is the cause of child labour and iff'tourse'of time the child labour becomes the cause ot poverty. Thus poverty and child labour' go hand in hand. Hence it is suggested that Govt.: should bring abb.ut plans and programmes namely providing betterernployment oPl?Qrtuni~iesto poor, enforcement of agrarian reforms, 'minimum wages "law, - sOCial security and pension to agricultural wQ1kers, etc. to root out poverty from the land "which will ultimately putan end to,chUd labour. .xiV. Conduct of ditallecf survey'on" child labou~ A detailed survey on child labour at intervals willcertainl¥ h~lp the policy- makers to get a correct idea on the nature. and. magnitude of the problems otchild labour and con~equently the Government can deal with the problems in a better way. ". - Vol.XIII] CHILD LABOUR IN l"fDIA 225 Therefore a detailed survey on child labour in organised and unorgahised sectors shoUld be made. inthef6110wing lines: a. Thtalnumber of werking children, b. Sex wise distribution, c.· Job wisedistribution, . d. Family status and family prpblems", e. Social background,· 1. Literacy record of working children, . ' ~ " g. Literacy record of parents, , h. School-gajng, non,~~ch601 going and dropout woi'king children, I' i. AmOuntand m.qde of p51ymentof wage,,· ~ ':"~ I ' . j. Type of W6rk places, k. Age wise distribution, I. Starting age of working children m. Number of working days, n. Dailyworking hours, o. Views of working children on the need of child labour, p. Views of parents of working children on the needof child labour. q. Views. of doctors and psychologists on the desirability and effectof child labour. 226 CENTRAL INDIA LAW QUARTERLY [2000 Conclusions Child labour can-notbeabiolished,by,afNlQiC, w~ over~jght and will have to pass through a long way and during this period of transition several measures should .bataken lsuch asamendrnent of relevant legislation to ensure uniform definition for the·"child", ensuring minimum wages to children at par with adult workers, defining the hazardous, employment in clear terms, involving the voluntary" organisations to protect the children from any kind,\Of 'exJ)lOitattoA, Jmposition of stiff penalties on the. concerned persons for violating the legislative and constitutional provisions,presen6ihgstriet punistimerriSoh the parents of the.children who are involved' in' pledging and selling children for labour, providing free and compulsory education to thectli1