It is an opportunity lost as much more could have been garnered from the new Amendment to the Child Labour (Prohibition & Regulation) (CLPR) Act, which was passed last month in the Parliament, than what has actually been achieved. It appears that the Amendment has been done to merely show-case to international bodies that India has complied with international Conventions on child labour. It has done so in letter, and not in spirit.
But the on-going hot debates on the Amendment amongst the child rights activists and on the pages of the written media tend to be misinformed as there is lack of awareness of - or people have simply forgotten - the severely pernicious and regressive provisions of the CLPR Act of 1986, so that the steps forward that this new Amendment takes, at least in theory, are also misread and misunderstood. Also, there are a lot of misconceptions, even among groups working on child rights, about what the international conventions actually say.
What’s wrong with CLPR Act, 1986
Now what exactly were the regressive provisions of the CLPR Act of 1986? The CLPR Act of 1986 did not prescribe a minimum age for general employment in non-hazardous activities, so that even a newborn child could theoretically be engaged in this kind of employment or work. Part III of the CLPR Act of 1986 merely regulated the conditions of work in such employments, regarding hours of work, rest periods, holidays, etc.
The 1986 Act fixed a minimum age of 14 years for employment only in 83 hazardous occupations and processes, listed in Schedule 1 and Schedule 2 respectively appended to the Act. But this was also with the proviso 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...”.
Thus, the 1986 Act allowed child family labour in 83 occupations and processes as dangerous as the making of firecrackers, match-sticks, beedis, etc., for children below 14 years. So, child family labour is not something that is being introduced by the CLPR Amendment Act as many are believing.
It was due to this provision of 1986 Act that processes which were banned for children in commercial establishments shifted to homes, where they could be carried on in total legality even by a 3-year-old child.
These provisions of the 1986 Act were in total violation of the ILO Convention 138 of 1973 which fixed a Minimum Age of 14 years for general employment or work. The ILO Convention 182, which came into being in 1999 raised the minimum age for employment or work in hazardous processes to 18, but the CLPR Act of 1986 was not amended to incorporate this provision. The RTE Act came into being in 2009 making elementary education free and compulsory for the ages 6 to 14 years. But the CLPR Act of 1986 was continued as it was and was not amended even at this time to bring it in line with the RTE Act.
So, what exactly is the latest CLPR Amendment Act (CLPRA Act) doing?
It is first of all banning all employment of children under 14 years bringing it in line with ILO Convention 138 on a Minimum Age for General Employment. Thus, all wage employment of children under 14 years, including in agriculture, animal husbandry, etc., in which most child labourers are engaged, is now banned. This is indeed a step forward and one needs to acknowledge that.
The CLPRA Act has also raised the age for employment or work in hazardous occupations or processes, which was 14 years under CLPR Act of 1986, to 18 years in tune with the ILO Convention 182 and Article 5 of Convention 138. Further, the CLPRA Act has banned hazardous work of children with the aid of the family. The claim by many that all hazardous processes will shift to families now, as a result of CLPRA Act, is wrong.They had already shifted in 1986. CLPRA Act is only trying to set right the wrong done in 1986, but partially only, as we shall soon see.
The CLPRA Act is allowing only non-hazardous work of children in family undertakings, that too outside school hours, thus recognising the Right to Elementary Education of the child. Hence the current hullabaloo as though CLPRA is permitting child family labour where it did not exist before, and that it is violating a child’s right to education are totally misplaced.
A major issue raised by protesting groups is that caste-based occupations will be perpetuated as a result of child family labour in non-hazardous processes being permitted by the CLPRA Act. It was the earlier CLPR Act, 1986 that perpetuated caste-based occupations since it allowed a child to work for the entire day at it and there was no requirement that it should attend school also.
The present Act is saying that the child has to attend school, which is at least 6 hours per day, and help in non-hazardous family labour outside school hours. The child can continue any skill-based training of her/his choice and need not continue in the caste-based occupation, when s/he reaches the age of 14 years. It is crucial that the child should have completed compulsory education for her/him to have these other options to move out of caste-based occupations.
Bans notwithstanding, the use of child labour is rampant. Photo Courtesy: Shirish Khare.
The CLPRA Act is widening the choices available to a child which were not there earlier. Our focus should be on strengthening the mechanisms within the Education Department to ensure retention of every child in school for the period of compulsory education. Karnataka has shown the way for it through the suo motu PIL taken up by the High Court of Karnataka which has made education department officials accountable for bringing every child back to school within a fixed time-frame.
Will the Amendment help or harm
Though the CLPRA Act is a step forward, at least theoretically, there are loud cries that it is violating the United Nations Convention on the Rights of the Child (UNCRC) and the International Labour Organization (ILO) Conventions 138 and 182 without explaining how these are being violated.
The twin demands of some activists are that “since the UNCRC defines a child as ‘a person under 18 years of age’ all child labour up to 18 years, including family labour, should be banned and education should also be made compulsory till 18 years”. While these ends may be wholly desirable, the premise that these are a requirement under UNCRC because of the definition of the child is totally misplaced.
Some activists brand all child labour up to 18 years a 'crime' which the International Conventions do not do. For this, they claim the support of the Juvenile Justice (JJ) Act also. They claim that the CLPRA Act is violating the provisions of the JJ Act on the minimum age for employment or work, which is based on a misreading of the provisions.
All that Section 14(ii) of the JJ Act is saying is that a “Child in need of care and protection means a child who is found working in contravention of labour laws for the time being in force...”. So if 14 is the current minimum age for employment and there is no restriction of age for family child labour, the JJ Act endorses that. In no way is the JJ Act saying this age should be 18 years at all costs as a minimum. The JJ Act can be invoked if there is abuse and exploitation at the workplace where child labour is permitted.
Let us examine one by one what the International Conventions actually say.
Article 32 of the UNCRC on Child Labour says, “having regard to the relevant provisions of other international instruments”, countries shall:
(a) provide for a minimum age or minimum ages for admission to employment;
(b) provide for appropriate regulation of the hours and conditions of employment.
Thus it is clear that UNCRC itself does not fix any minimum age for employment. It also speaks of regulating employment of children, indicating that it does not envisage a total ban on all child labour. It is also speaking of a minimum age for ‘employment’ and not any ‘work’, plausibly signifying that a minimum age is required only for wage work and not for family work.
The only “relevant provisions of other international instruments” referred to in Article 32 are the ILO Conventions 138 and 182.
ILO Minimum Age Convention 138 (2) says clearly that the minimum age for general employment “shall not be less than the age of completion of compulsory schooling and, in any case, shall not be less than 15 years”. But it provides a further concession for countries “whose economy and educational facilities are insufficiently developed” to “initially specify a minimum age of 14 years”.
So, the fixing of 14 years in the CLPRA Act as the age for general employment in all sectors is in line with the current 14 years fixed as the age for the completion of compulsory education under the RTE Act and with the ILO Convention 138 as applicable to a developing country. Hence, the demand that this age should be 18 years as a minimum as per the UNCRC and ILO is not correct.
Article 4(1) of the ILO Convention 138 provides a further concession that a country “may exclude from the application of this Convention limited categories of employment or work in respect of which special and substantial problems of application arise”. Thus, if the CLPRA Act excludes non-hazardous family labour of children from application under the law because of the difficulties in monitoring the work done by children in the private sphere of a home, that too is permitted under the ILO Convention 138.
Article 7(1) of the ILO Convention 138 further permits “employment or work of persons 13 to 15 years of age on light work which is (a) not likely to be harmful to their health or development; and (b) not such as to prejudice their attendance at school…..”. It also allows developing countries to “substitute the ages 12 and 14 for the ages 13 and 15 for doing light work. This concession has not been incorporated in the CLPRA Act.
So there is a whole gamut of conventions and literature on what a child may or may not do at different stages of its growth and there is no blanket ban up to 18 years as claimed by some activists.
Child labour vs. Family labour
The ILO in an explanatory note defines child labour thus: “Not all work done by children should be classified as child labour that is to be targeted for elimination. Children’s or adolescents’ participation in work that does not affect their health and personal development or interfere with their schooling, is generally regarded as being something positive. This includes activities such as helping their parents around the home, assisting in a family business or earning pocket money outside school hours and during school holidays. These kinds of activities contribute to children’s development and to the welfare of their families; they provide them with skills and experience, and help to prepare them to be productive members of society during their adult life.”
Otherwise we will have raised individuals who are egocentric, who as adults will not involve themselves in the life of the family, as true partners and parents, or in the larger society around them. We should also credit parents with the judiciousness not to exploit their own children, provided the State assists them in not doing so.
Thus, when it comes to family labour, even advanced countries have not legislated away all non-hazardous family labour, including non-hazardous economically productive activities.
A study has shown that nearly half (73 out of 157) of the countries studied allowed exceptions to the basic minimum age for admission to employment in family undertakings or where work is carried out in the company of family members. This includes one quarter of the countries in Europe. This is due to the thin line that exists between normal household tasks, such as washing dishes and collecting water, and economically productive activities, such as cutting grass or fetching fodder and feeding cows. So the CLPRA Act is not doing anything contrary to the International Conventions if it is excluding non-hazardous family labour from the application of the minimum age for employment.
There is also the criticism that the CLPRA Act is allowing participation of children in cultural and artistic activities in violation of the UNCRC. It needs to be noted that UNCRC Article 31 (2) clearly allows countries to “respect and promote the right of the child to participate fully in cultural and artistic life” and requires them to “encourage the provision of appropriate and equal opportunities for cultural, artistic, recreational and leisure activity”, of course under regulated conditions. Article 8 of ILO Convention 138 also allows exceptions to the prohibition of employment or work “for such purposes as participation in artistic performances”.
Clearing the ambiguity in CLPRA
Let us come to the severe loopholes in the CLPRA Act, no doubt introduced very blatantly with malafide intent, and these need to be addressed head on if any change is to be witnessed on the ground in the life of child labourers.
The definition of family includes 'uncles and aunts'. There is an urgent need to push for an amendment to say that any child family labour has to be done under the supervision of the child's parents and legal guardians only and 'uncles' and 'aunts' have to be removed from the definition of family. If 'sister' and 'brother' are to be retained, it should be restricted to own 'sister' and 'brother' and not cousins. If this is not done, critics are quite correct when they say that employers will continue to get work done through child family labour, by claiming to be the ‘uncles’, ‘aunts’, ‘cousin brothers’ and ‘cousin sisters’ of the children. Yet it may still be unavoidable that some amount of family labour will continue as disguised outsourced wage employment.
Coming to ‘hazardous employment or work’, ILO says, “Convention No. 182 on the Worst Forms of Child Labour has universal coverage, which means it applies to all sectors of the economy and status in employment (for example including unpaid family labour on family farms) with no exception possible. Hazardous Work Lists are to be established at national level by a competent authority and after tripartite consultation with employers’ and workers’ organizations”.
Article 5(3) of ILO Convention 138 prescribes applicability of the Section on hazardous work as a minimum to the following occupations: mining and quarrying; manufacturing; construction; electricity, gas and water; sanitary services; transport, storage and communication; and plantations and other agricultural undertakings mainly producing for commercial purposes, but excluding family and small-scale holdings producing for local consumption and not regularly employing hired workers.
The CLPRA Act on the face of it does comply with ILO Conventions 182 and Article 5 of Convention 138 on hazardous work, but by reducing the list of 83 occupations/processes to a few numbers, it has diluted the entire Act and ensured that nothing will really change on the ground and status quo is maintained.
The reduced list of hazardous occupations/processes showcases the true chicanery in CLPRA Act. This is the reason that activists are contending that the CLPRA Act is not fulfilling the aspirations embedded in our Constitution. Thus, domestic work, construction labour, work in hotels and dhabas, beedi and agarbatti rolling, work in brick kilns, slaughterhouses, carpet and zari units and rag-picking, where currently child labour is banned, do not find a place in the list of hazardous processes annexed to the CLPRA Act. Hence these hazardous processes can continue to be performed by adolescents as wage labour and by all children within families as these are no longer considered to be hazardous.
Article 24 of the Constitution says there should be no child labour in mines, factories and other hazardous occupations. By allowing child labour in the above hazardous occupations and processes, definitely Article 24 is being violated.
But a glimmer of hope is that, though the list of hazardous occupations / processes has been reduced to only three, a deeper reading reveals that 'hazardous process' under Schedule 1 annexed to Section 2(cb) of ‘The Factories Act’, which is to be considered as the list applicable to the CLPRA Act, lists 29 industrial processes (so, it is not just 3) and many of them are among the list of processes that were in the Schedule of the CLPR Act of 1986. The list includes pesticides, insecticides, etc., so possibly handling of these substances by adolescents and children working on household farms would hence be banned.
All is not lost though, as Section 2(cb) has the proviso that state governments "may, by notification in the official Gazette, amend the First Schedule (of the Factories Act) by way of addition, omission or variation of any industry specified in the said Schedule". The Technical Advisory Committee can do the same to the Schedule of the CLPRA Act. Thus, we need to pressurise state governments and the Technical Advisory Committee to ensure that all the 83 occupations/processes that were in the Schedule of the CLPR Act of 1986 are added to the relevant Schedules under the CLPRA Act again. This will remove the major weakness and obvious mischief in the CLPRA Act.
Assuming that the inclusions to the list of hazardous processes will be done eventually, the big question that not many are posing is how to ensure that a child is not involved in such banned hazardous processes that may be carried on within the home. Currently, beedi rolling, weaving, etc., are done mostly at home. This issue is not addressed in the CLPRA Act. One possible suggestion that could be made is that all such hazardous work that affects the health of children should not be conducted at home or that these should be conducted only in work-sheds outside the home. This is indeed a difficult proposition. But what other solution is there?
The CLPRA Act regulates the work in non-hazardous occupations of adolescents or young persons by prescribing the number of hours that they may engage in such work, the periods of rest, etc. But there are no provisions to regulate non-hazardous family labour by children. There is a need to include provisions saying that non-hazardous household labour outside school hours should not exceed a specified number of hours and that the child should be given a specified number of hours for play, leisure and recreation.
Until non-hazardous labour of children in families is regulated, it will be correct to say that the aspirations of Articles 39(e) and (f) of the Constitution are not being fulfilled by the CLPRA Act.
What about the enforcement
But how will these provisions be enforced, even if they are included?
Can we expect labour inspectors to monitor this in each and every home? The uropean Council too, which has some of the best social legislation in the world, has refrained from legislating on this issue for this very reason. There is a provision in the UNCRC that children should be educated about their rights and this is the better and more feasible solution for ensuring that children are not exploited by their own parents. If told about his/her right to leisure, etc., the child can always complain to a child helpline, child rights' club, child protection committees at local level or child protection officers about violation of his/her rights. Education of parents also has to be done on the provisions on child family labour. These are the only ways child family labour can be regulated.
It is essential that the list of hazardous processes be expanded by expanding Schedule 1 of the current CLPRA Act to fulfil Constitutional provisions. Non-hazardous family labour needs to be regulated by limiting the hours of family work and ensuring sufficient leisure hours to meet the requirements of Articles 39(e) and (f).
But definitely eight years of education up to 14 years is insufficient for a child in the current context. Recognising this, the Minimum Age Recommendation, 1973 (No. R-146) has been passed during the 58th International Labour Conference (ILC) session (26 Jun 1973) of the ILO which recommends that countries “should take as their objective the progressive raising to 16 years of the minimum age for admission to employment or work”.
But merely raising the age for compulsory education to 18 years, as demanded by some, will only result in 30% of children being branded as 'SSLC fail' and 'PUC fail' at the end of 10 or twelve years of education as this 30%, or sometimes 40%, have other aptitudes and do not have an aptitude for mere academic learning.
As Article 28(1)(b) of the UNCRC on the Right to Education mandates, we have to "encourage different forms of secondary education, including general and vocational education, make them available and accessible to every child ...". We need to also keep in mind that currently in our country opportunities for skilling and vocational training exist only for 1% of the new entrants to labour. A child completing eight years of compulsory education and not finding opportunities for vocational training will find himself nowhere.
Until such avenues for vocational training are available, it will not be desirable to simply raise the age for compulsory education to 18 years and force all children into an academic stream of learning, at the end of which many children will find themselves incapable of continuing in academics and also have no vocational skills to take up some employment and stand on their own feet when they turn 18 years.
Of course, the provision in the New Education Policy to start a vocational stream from 5th or 6th Standard needs to be opposed since this pertains to the period of elementary education and not secondary education. Instead the above demand as per Article 28(1)(b) of UNCRC needs to be placed. This is the way a child can come out of caste-based vocations, if it desires to come out of it.
45% children in the country are still not completing eight years of education (as per latest NCERT study). This is mostly due to non-implementation of Articles 19, 20 and 27 of the UNCRC and Articles 41 and 46 of our Constitution that mandate that parents should be assisted in fulfilling the rights of their children.
The content of the above Articles has been embedded for the first time in the country by Karnataka into its RTE Rules as a result of the suo motu PIL taken up by the Karnataka High Court so that all children are assisted to complete at least 8 years of compulsory education from any age above six years. If even this fails, the children have to be taken charge of by the state and placed in free residential schools or fit institutions. Once most children achieve eight years of compulsory education, the age for completion of compulsory education can be raised in a phased manner to the age of 16 years and later to the age of 18 years, provided secondary education also provides a vocational training stream.
In a democracy, making changes is a slow process and it’s difficult to bring in radical changes overnight. One needs to work for incremental changes, keeping the overall goal in mind, through constructive dialogue with the government in power. One needs to adopt a nuanced approach and suggest concrete measures on how the incremental steps can be taken, as outlined above.
Without doing that and simply making a blanket demand, saying 'All Child Labour Should be Banned (Even in Families) till 18 Years, And Education for All Children Should be Compulsory Until 18 Years', will amount to sloganeering to catch eyeballs without any real intention to change the status quo. There is also the danger that no one will pay any attention to such a demand when some positive steps have been taken to remove some of the ills of the earlier CLPR Act of 1986.
The sloganeering will also be seen as an attempt to portray ourselves as holier than the international conventions and wiser than the most advanced countries while we are actually the dregs of the international community, since we have the world’s largest number of children under 14 years working, who are not completing even eight years of compulsory education. We need to see ourselves and our aspirations with greater humility.