Context
Let’s go back to 1985 when a draft bill presented by an NGO, for the first time introduced the concept of regulation of working conditions, rather than complete prohibition of child labour. Groups working with children and child labour were all drawn into a nationwide debate. They were divided in their stand. One group felt that, although it may not be possible to eliminate child labour immediately, any move — legal or programmatic must be towards elimination. The second group felt that since child labour was a ‘harsh reality’ steps must be taken to ensure that they are not further exploited and therefore, legal measures were required to ensure this.[1] This draft was what was converted into the Child Labour (Prohibition and Regulation) Act 1986.
For those of us who have been witnesses to the debates around child labour since the 1980s, there is sense of déjà vu. 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”.
This could be an undated statement as this is exactly the same argument that the government had made in 1985-86 to allow for children to be able to work in family based work or for skill training, even if it was hazardous. The only difference in 2015 is that while making an exception for children to be engaged in family based enterprises, the current bill qualifies it by saying that children must continue in school as per their Right to Education, and specifies that the family enterprise must not be hazardous. But therein lies the gap.
Loopholes in the law- are they deliberate?
‘Family’ is defined in the proposed bill as child’s mother, father, brother, sister and father’s sister and brother and mother’s sister and brother. It uses the word ‘help’ to describe the child’s involvement in the family enterprise (after school hours and during vacations).
In a feudal, caste driven Indian society what do these provisions amount to? Child labour in India has become so normalised that there is neither shock nor shame – it is a ‘necessary evil’. Since most family based occupations in India are caste based, the exception in Section 3 in the law, which allows children to work in family occupations, will only keep the caste system intact-like, for a potter's son/daughter to be a potter, a weaver's child to be a weaver and so on. Without doubt, this kind of a law will worst affect the Dalit and the marginalised who are at the bottom of the caste hierarchy. The Ministry officials of course say that this is taking the argument too far!
But, why would the government of a country, that is today by its own admission, the fastest growing economy of the world, feel compelled to justify and keep children in labour despite Parliamentary Standing Committee examining the bill saying: "The ministry is itself providing loopholes by inserting this proviso since it would be very difficult to make out whether children are merely helping their parents or are working to supplement the family income. Further, allowing children to work after school is detrimental to their health as rest and recreation is important for their physical and cognitive development."[2]The Committee also stated that rest and recreation is of utmost importance for the mental and physical development of a child and that working will only adversely affect their studies and their health.
Clearly, the Committee was more cognisant of the fact that children in India find it very hard to continue in school. That is why despite rising enrolment, retention is not that great. It is the girls, the Dalits and tribals who are ones who drop out to ‘help’ the family.
It must be recognised that the assumption, that ‘cultural traditions’ have to be accepted without intriguing into the inherent inequalities, perpetuates certain historic exploitative practices. It has been argued that any abstraction of child labour from children’s work accords social acceptability to some forms of child-work, masking marked ideological and gender biases in society. [3]
The officials of the Ministry of Labour and Employment who have drafted this bill say that this proviso is imperative to prevent criminalisation of parents and families. As a very senior official said “this explanation or exception is necessary, otherwise if I ask my child to put a nail on the wall—that too can be counted as child labour and lead to my prosecution- see how dowry law is used to harass innocent people. We don’t want a similar situation with this law”.
A quick look at the government’s ownstatistics of prosecution tells us how limited the use of the law has been in the past.
What is more, the government also noted that most employers were acquitted by the courts as the prosecution failed to prove the offence due to the casual approach of the prosecution witnesses and inability to produce independent witnesses. [4]
Under these circumstances, is it at all likely that ‘zealous members of society’ that sees child labour as normal and necessary or labour inspectors who have been ineffectual in the past, will go around snooping into people’s houses only to pick up poor parents and prosecute them?
Defining or conceptualising child labour has been and continues to be one of the most complex issue as it involves three difficult-to-define concepts ‘child’, ‘work’and‘labour’. Each of them is defined differently by different countries and internationally. As stated by Burra, “those who have argued for narrow definition have best been motivated in part by the desire to reduce the size of the problem and thus make it manageable. But this conceptual sleight of hand flies in the face of common sense results in making the work of millions of children invisible to public policy and public action.”[5] This indeed is the reality even today.
Moreover, apparently non-exploitative, the notion of domestic work needs unpacking in the light of the fact that many children never get enrolled in school or are forced to drop out because they have to look after the home chores or undertake sibling care, and this is especially true for girls. This was an area that was highlighted and discussed even when the debate around child labour was at its nascent stage and continues to be as relevant today.
Children will and must support their families or ‘help’ their parents- they do so today and they will continue to do so. The problem lies in the inclusion of this proviso in the law, especially since we are well aware that the notion of family is a very wide and ambiguous in India. This is exactly the kind of legal loophole that has led to the continuation of child labour till now. Past experience of implementation of the law that had a similar proviso (Section 3 of the CLPRA, 1986) has amply shown that this was the one way in which children were tied to home based work and exploited.
Given the reality that the trafficking of children is rampant, in the back drop of the wide concept of family, this could also lead to children being trafficked for work as many traffickers claim that the children in their care are ‘family’. In the absence of comprehensive birth registration it may be very difficult to ascertain whether a child is really part of the family or not. In addition, many families may host children from the extended family as part of informal kinship care.
Remember, that the government is also in the middle of discussions on sponsorship- which will include kinship care.
And although all children are banned from working in hazardous occupations, the 16 occupations and 65 processes that were listed as hazardous in the 1986 law has now been replaced in the Bill with -mines, inflammable substance and hazardous processes which has the meaning assigned to it in clause (cb) of the Factories Act, 1948. These are the same that will also apply to the 14-18 year olds categorised as ‘adolescents’ in the Bill.
This reduction in the number of occupations that fall into this category and no provisions in it for an increase in this list, means that children will be employed in domestic work, hotel and dhabas and several other such places that have now come to be recognized as extremely hazardous occupations.
Besides, every day newer ‘occupations’ are coming up which are hazardous and dangerous. For example when the law in 1986 was formulated, there was no employment related to e-wasteand no one can deny that children engaged in working with e-waste are in extremely hazardous occupations! Similarly the impact of working with pesticides on children in agriculture was not there in the past neither was working with bags full of hair to make wigs!But they will not find a place in the law.
Also, this proviso has been put in without taking into consideration the fact that although free and compulsory education is a right of children in the age-group of 6-14 years, we have only seen an increase in the enrolment rates, while attendance and retention of the students is still a challenge we are yet to overcome. In a situation when children feel compelled to work to support their families, there is a greater likelihood of their dropping out of school.
The second provison that has been included in the Bill is address children working as an artist in the audio- visual entertainment industry or in sports activities except circus. These are welcome inclusions given the large number of children in advertisements and reality shows today, or to address the fate of children like Budhia.[6]But what about children who are street performers and acrobats risking their lives on ropes and poles (although not in circus, what they do is not very different) or “artists” who are singing and dancing late into the night in restaurants and weddings? They are not covered by this law. Is that because they are needed to preserve our rich social fabric? There is a definite class bias to the law that needs to be addressed.
In fact it is high time to consider an amendment to Article 24 of the Constitution of India which identifies child labour as only those children below the age of 14 years and bans employment of child labour in only hazardous employments. In doing so, it remains silent on employment of children above the age of 14 years and allows a statutory distinction between ‘hazardous’ and ‘non-hazardous’ sectors of employment, which has resulted in a serious challenge in dealing with the issue. It does not tell us what is to be done with the remaining children between the age of 14-18 years. This is important because this is how children have come to be defined in the National Policy for Children, 2013 and the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, National Plan of Action for Children, 2005 and other legal and policy instruments.
The Ministry of Labour and Employment says that the law is drafted keeping in view the option that the age upto which free and compulsory education will be made available can be raised and the law on child labour will be applicable accordingly. This is very welcome as today, the Right to Free and Compulsory Education law which only gives the right to education upto 14 years, or class eight, needs review as it does not qualify children for any further education or entry into any skill based/ vocational training in any recognised institute such as ITIs. The age of child labour would then automatically be raised and our children protected. There is a clear argument for increasing the age of right to free and compulsory education to a minimum of secondary education so that children are protected from labour and exploitation. Although this is not in the purview of discussions around this bill, given the intrinsic connection between education and child labour, this cannot be ignored.
While in the 1980s and before, “nimble hands” were needed to knot carpets, today they are needed to cross-pollinate BT Cotton Seeds! It is perfectly justified! Most of middle class India, including many bureaucrats and political leaders feel it is perfectly “OK” to employ children as domestic workers as the children of the poor “need” to protection of art, culture and crafts and children’s working to do that is also justified.
This amendment to the child labour law must not be read in isolation. For example read the definition of family enterprise which means any work, profession, manufacture or business which is performed by the members of the family with the engagement of other persons along with the proposed Small Factories (Regulation of Employment and Conditions of Services) Bill that seeks to exempt units employing less than 40 workers from 14 labour laws including the child labour law[7]etc. Will these small factories also be part of “Family enterprises” that children will be “helping” in? The Factories Amendment Bill[8] continues to have several clauses that allows for children below 14 years to continue working.
Indeed, this Bill must be seen and analysed in the context of the dilution of labour laws and standards in the country and the move towards greater informalisation of labour and the push towards manufacturing in the unorganised sector. As Mr. Shankar Aggarwal, Secretary Ministry of Labour and Employment is quoted saying “All the amendments are being done keeping in mind three things—need of the times, workers’ protection and creating an environment for more job creation,” ….“Every year, the country needs to create an excess of 10 million jobs and for that manufacturing sector is key. The proposed labour reforms will help the pace of industrialization while keeping workers’ rights intact.”[9]
Clearly the main stress of the Ministry is to create jobs to meet the needs for manufacturing, not so much to protect children. In this backdrop, when production is pushed into the homes, who is to regulate the entry of children into the work force? This is nothing but keeping the un-scrutinised and the unregulated informalisation of labour alive, so that corporates can ‘make in India’ without having to deal with the labour unions and the labour laws.
Not convinced? Watch a film Stained Glass by Meera Dewan[10]. She had made a poignant, and for many of us, a life changing film- Whose Children in 1986, just as the discussion on the child labour bill was on. She has followed the children that were there in her film in 1986 into their adulthood in Stained Glass. As we discuss the new amendment, it is good to see what those children of 1986 and now adults of today have to say, as also the child labourers of today.
Is it not a shame for the fastest growing economy of the world to continue with its growth path on the backs of children and justifying it as a social reality? And is it not time that the law on child labour was aspirational rather than a reflection of “harshsocial reality”?
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.
ProChild Coalition: New Child Labour Bill will push more children into hazardous work
A hindi version of the Press Release by the Pro-Child Coalition can be found here
After 30 years the government has introduced a new child labour law which claims that it bans all forms of child labour till the age of 14. Sadly, the country is buying into an illusion. The truth is that the amendment to the Child Labour Prohibition and Regulation Amendment Bill 2016, passed by the Parliament continues to allow children to be employed in family-based enterprises, and secondly, the employment of children in most hazardous occupations like tanning, bangle-making, zari work, carpets, domestic work, e-waste and numerous others that till recently were recognised as hazardous for children will now be permitted. ProChild Coalition, a network of academics, organisations and individuals strongly opposes the Bill in its present form. Through this brief note we would like to raise some important concerns that arise in the wake of this.
Legitimises Child labour
The government claims that it has banned all forms of child labour up to the age of 14 years however, with the new Bill it has de-incentivized education by legalizing family-based work. ‘Family’ is defined in the proposed bill as child’s mother, father, brother, sister and father’s sister and brother and mother’s sister and brother. It uses the word ‘help’ to describe the child’s involvement in the family enterprise (after school hours and during vacations). The problem lies in the inclusion of this proviso in the law, especially since we are well aware that the notion of family is very wide and ambiguous in our country. This is exactly the kind of legal loophole that has led to the continuation of child labour till now. Past experience of implementation of the law that had a similar proviso (Section 3 of the CLPRA, 1986) has amply shown that this was the one way in which children were tied to home based work and exploited.
Reinforces Caste based occupations
Since most family based occupations in India are caste based, the exception in Section 3 in the law, which allows children to work in family occupations, will only keep the caste system intact-like, for a potter's son/daughter to be a potter, a weaver's child to be a weaver, a tanner’s child to be a tanner and so on. In a feudal, caste driven Indian society what do these provisions amount to? Without doubt, this will worst affect the dalit and the marginalised who are at the bottom of the caste hierarchy, a ghastly example of which was the recent beating and humiliation of dalit youths in Gujarat.
Child labour over Child Protection?
Although all children are banned from working in hazardous occupations, the 16 occupations and 65 processes that were listed as hazardous in the 1986 law has now been replaced in 3 occupations and 29 processes that are in the Factories Act which covers only the organized sector.
This reduction in the number of occupations that fall into this category and no provisions in it for an increase in this list, means that children will be employed in domestic work, hotel and dhabas, brick kilns and several other such places that have now come to be recognized as extremely hazardous occupations and fall in the unorganized sector. Although the government’s data claims there is a significant decrease in the number of child labour in the country, in reality the number of children already working in the unorganized are multiplying (for example Census 2011 shows that child labour in urban settings has actually increased- and that is where the unorganized sector is).Besides, every day newer ‘occupations’ are coming up which are hazardous and dangerous. But they will not find a place in the law.
No Rights for Poor Children
While the Parliament unanimously passed the Indian Institutes of Technology(Amendment) 2016 to benefit the young wizards of India, the same Parliament, barring MPs from the ruling NDA,expressed surprising empathy for India’s children to oppose the passing of this regressive Bill.
Indeed, this Bill must be seen and analysed in the context of the dilution of labour laws and standards in the country and the move towards greater informalisation of labour and the push towards manufacturing in the unorganised sector. As Mr. Shankar Aggarwal, Secretary Ministry of Labour and Employment is quoted saying “All the amendments are being done keeping in mind three things—need of the times, workers’ protection and creating an environment for more job creation,” ….“Every year, the country needs to create an excess of 10 million jobs and for that manufacturing sector is key. The proposed labour reforms will help the pace of industrialization while keeping workers’ rights intact.”[11]
Clearly the main stress of the Ministry is to create jobs to meet the needs for manufacturing, not so much to protect children. In this backdrop, when production is pushed into the homes, who is to regulate the entry of children into the work force? This is nothing but keeping the un-scrutinised and the unregulated informalisation of labour alive, so that corporates can ‘make in India’ without having to deal with the labour unions and the labour laws.
It seems the government is in a state of intellectual and policy disarray. While on one hand it talks about Skill India, and Girls’ education, on the other hand by passing this law dilutes the efforts keep their children out of school, as theParliamentary Standing Committee examining the bill had cautioned: "The ministry is itself providing loopholes by inserting this proviso since it would be very difficult to make out whether children are merely helping their parents or are working to supplement the family income. Further, allowing children to work after school is detrimental to their health as rest and recreation is important for their physical and cognitive development."[12]Child labour in India has become so normalised that there is neither shock nor shame – it is a ‘necessary evil’.
It is obvious that the government is happy to put the burden to make ‘Make in India’ a success only on children from poor,dalit, muslim and tribal families but Shouldn’t a country vying for the global high table aim higher for its children?
New Delhi, p21