This article has been written by Sarvesh P. Giri. Sarvesh is a Bachelor’s of Engg in Electronics and Telecommunication, 2015 batch from Mumbai University and pursuing LL.B. from Gopaldas Jhamatmal Advani Law College, Mumbai.
“I am the child.
All the world waits for my coming. All the earth watches with interest to see what I shall become. Civilization hangs in the balance, For what I am, the world of tomorrow will be. I am the child.
You hold in your hand my destiny. You determine, largely, whether I shall succeed or fail, Give me, I pray you, these things that make for happiness. Train me, I beg you, that I may be a blessing to the world”.
HANSARIA (Supreme Court of India)
M.C. Mehta V/s State of Tamil Nadu
Today, India has been the largest growing country in the world in an attempt to maintain pace with the rest of the world not only in terms of economy but also in other respects. In this attempt what remained neglected were the “Children”. The children generally referred to as “THE FUTURE OF INDIA” by eminent personalities and various public figures are the most unprotected ones at present era.
This issue needed a serious approach and if the same was not tendered then the future of global India would definitely be eclipsed by this malice. Today when we have stepped into the 21st century and that we are speaking about future of India modelled in the concept of “DIGITAL INDIA, what we actually ignore is the future of India which needs to be modelled by virtue of great efforts and attendance.
India has been the founder Member of the International Labour Organization (ILO) where the ILO has passed Convention 138 and Convention 182. Convention 138 states that no children can be engaged into work who has not completed compulsory schooling and Convention 182 prohibits child labour to children below age of 18 years in worst conditions.
Therefore the Government of India came up with an explicit statutei.e. THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986, which would be an attempt to put a halt to this malice and to protect the children as it was now the time for imposition in order to get children to schools and to protect their adolescents.
NEED FOR THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986:
Children are the most vulnerable members of this society and they are also the ones who need utmost care and assistance. This problem of child labour is the most creeping one in the developing country like India where poverty and illiteracy is damaging the backbone of the country and of which the child labour is the consequence.The children in the olden period assisted their parents in their business and as such there was no concept of “child labour” in those days but, now this has been misused as a money making policy either by parents or by various establishments such as factories, industries, etc, in advancement of either beneficiaries or money.
Hence in order to protect and to safeguard the valuable rights and interest of the children in India the Hon’ble Government of India came up with an essential statute which mandated the protection of fundamental rights of the children i.e. right to healthy and dignified life, under Article 21 of Indian Constitution.
In consonance of this, the Government of India articulated a statute namely THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986, in order to further satisfy the fundamental principles laid down under Article 15(3) and 39(f) of the Indian Constitution for protection of children rights which would consequently safeguard the future of the India and the same Act would be referred hereinafter as “THE PRINCIPAL ACT” for the sake of brevity.
This statute was apt and much needed at the time of its enforcement as it was in consideration of the scenario that existed at that time and it was also upheld in the interest of justice with a focus on the constructive role of the state in respect of children as was expressed implicitly in the case of M.C. Mehta V/S State of Tamil Nadu, whereby the children were prohibited from being employed in the matches factories but they were allowed to assist in packing in areas not exposed to accident.
M.C. Mehta V/S State of Tamil Nadu:
- Famously referred to as THE CHILD LABOUR ABOLITION CASE.
- In this leading case of child labour abolition, the PIL Protagonist Mr. M.C. Mehta had filed a public interest litigation by virtue of Art. 32 of Constitution of India in order to get the suffering of children employed in Sivakasi Cracker Factories and the same was a blatant violation of Article 24 of Constitution of India, thereby seeking appropriate directions from the Hon’ble Supreme Court of India to curb this menace of child labour.
- Upon perusal of all the facts and figures laid forth by M.C. Mehta and the aforesaid Sivakasi Cracker factory, the Hon’ble Supreme Court of India issued directions with an intention and motive to curb child labour and to protect the right and interest of the children in pursuance of an attempt to avoid exploitation of children.
NEED FOR AMENDMENT OF THE PRINCIPAL ACT:
The Principal Act was enacted with an intention and motive to have a pragmatic approach to the menace crawling within the vicinity of the country and making it hallow in all respects be it a socio-economically or commercially, but the aforesaid principal Act was not sufficient in order to achieve the social motive as it was only restrained to children i.e. any person or individual who has not completed 14th year of age. The Principal Act did not lay a mandate for prohibiting employment of youths or youngsters possessing great zeal and enthusiasm within them to achieve the impossible goal and to execute any task with perfection.
The primary and secondary moto of the Principal Act was to protect the fundamental right of the children i.e. Right to Education, as set out under Article 21A of Indian Constitution but, however, the Principal Act was in partial violation of the same as the main essence of the Article 21A was the right to education with an intention and a motive to enhance the growth of children, both mentally and physically.
The people of various establishments and of various areas were employing children of age of 14 and above in employment which if not stopped would lead to the end of the race.
Giving a pragmatic and an observant approach to this, at the age of 14 a child has just completed his schooling and with the evolvement of society and advancement of generation a merely schooling is insufficient to make a living hence it was an alarm calling for amendment of Principal Act.
We needed to evidence growth within the country and for which it was the utmost need to get maximum number of children and youngsters to schools and colleges in order to instil within them the foundation of growth as it is a well settled thought that education is the path to advancement.
THE CHILD LABOUR (PROHIBITION AND REGULATION) (AMENDMENT) ACT, 2016- “THE CHILD ACT”:
In pursuance of the above loophole in the Principal Act, the necessary proposal was laid down for amendment where any person or individual of the age of 6-14 years was addressed as “children” and any person or individual of age of 14-18 years was addressed as “adolescent” as defined in the amendment Actunder section 2(ii) and 2(i) respectively of the amendment Act. This amendment Act widened the scope of the Principal Act.
As per the report of the Standing Committee, it was the vision to amend the Principal Act in order to ensure maximum enrolment of children and adolescents in schools and educational institutes which is in line with Convention 138 of ILO and all this was in view of RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009.
This Act was need of the hour as the Principal Act restrained only to children who have completed the age of their 14 years but now with the advancement of the society and education norms a child of 14 years of age would have no stand.
The question into the minds of the great policy makers was about the efficiency of the Principal Act and hence they were of the opinion to widen the scope and regulations of the statute. Upon observant approach the question into the minds of the great policy makers was to include the teenagers, youngsters and youth of nation into the statute by virtue of an amendment.
Hence, the amendment Act was introduced which widened its scope thereby not only counting children into it but also adolescent of the age of 14 – 18 years into it in an attempt to secure their stand in the world stage.
IS THIS AMENDMENT SUFFICIENT TO PROTECT THE RIGHTS OF FUTURE NATION BUILDERS?
Upon observing and being conversant with the abovementioned loopholes in the Principal Act, the great policy makers of nation came up with the amendment but, the question that still prevailed was over the efficiency of the Child Act.
Upon studying the Child Act, it has certain loopholes which were pretty trivial and that were also the ones which needed utmost care as they were sensitive in nature. The loopholes in the Child Act were as follows:
- Vague Expressions: Considering the LONG TITLE of the said Child Act, which mentions the purpose of this Act i.e. no children can be engaged in any occupation and that no adolescent in any hazardous occupation. As per this Act, the expression “any occupation” and “hazardous occupation” have different meaning. Theexpression “all occupation” is pretty vague as there is every certainty that the children can be employed in hazardous occupation which will damage their health and vigour and that the expression is not clear in respect of employment where children can be engaged.The establishments can hire children of age of 14 and engage them into a factory such as a fire factory, and that the establishments would have to shell out less money to pay the children than what they might pay to an adolescent.
- Lack of Scrutinizing Mechanism: The section 3(2) (a) which lays down provision which is a relaxation rewarded to families by allowing them to employ children to assist in the family business but now the question was a check mechanism which went undebated by the mind bogglers. This amendment to the section did not have any explicit or an implicit provision governing the scrutinizing mechanism unto whether the children helping their parents in their daily chores are not subjected to child labour on regular basis i.e. are the children making their presence in the school the next day? Hence, this section lacked on checking mechanism.
- Missing Part or Expression: Secondly his section lacks onto the nature of jobs which a child can undertake in pursuance of assisting his family in family business. This section can easily be misused, misinterpreted and act as a great tool for various employees in establishment to employ children in their factories and industries, etc. As for instance, if a person is a labour doing heavy jobs at a construction site and if he engages his child for assistance than that is no less than a child labour whereas if a person sells potatoes in a local super market and if he wishes to engage a child for his assistance, than it would be considered as an assistance.
- Ignorance of Mental Growth& Environment at Workplace: The amendment Act under Section 3(2)(b) includes the provision of certain employments within which the children can be employed such as artist in an audio visual industry including the advertisements, films, etc. but what went unnoticed is the mental growth of a child or an adolescent. At this tender age they need care as this is the time they will mould themselves as to what they will be in future. As such this provision does not even consider the work environment to be mandatorily be created to enable a child work without any instance of exploitation.
- Specific Undertaking In Respect of Jobs To Be Undertaken by Children: Section 3(2) (b) had also another loop hole as it did not consider the nature of jobs to be undertaken by children in audio- visual industry. The mention of words such as “artist” as per this child Act is a very broad term under this section. The expression “other activity as may be prescribed related to the entertainment or sports activity” can be used as a tool in defence by accused of child labour. It does not clearly state whether jobs arduous in nature can be undertaken by children or not. Explaining this point with an instance, if suppose a child is employed in a sport related industry where he is asked to carry heavy articles from one place to another place within the vicinity of the industry and that too carrying of the article is not within the capacity of the child, would it not amount to child labour?
- Missing Essential Expressions: The Child Act has inclusion of Section 3A whereby adolescent were not employed in hazardous jobs as setout in the schedule. Upon perusal of the schedule of the Child Act, working in mines, inflammable substances or explosives and hazardous process (as explained under Factories Act, 1948) is considered as hazardous but what is gone unnoticed is inclusion of labour jobs. Upon understanding the nature of jobs being carried out by labour, it is evident that it should also be included into the schedule or else people suffering from poverty would send their children to construction sites to work and that they would escape the clutches of law on grounds of labour jobs not included into hazardous occupations.
- MISSING OF “CHILDREN”:The trifle loophole in section 3A was the mere mention of word “adolescent”. Today, with a crystal clear business vision the employers would employee children (as defined under this Child Act) merely on two grounds i.e. firstly being that no mentionof children in law in this section prohibiting the engagement of children in hazardous occupation and secondly that an employer of an establishment will have to pay less to a child than what is paid to an adolescent.
MERITS OF THE CHILD ACT:
The menace of child labour is primarily because of two reasons i.e. poverty and illiteracy. Passing a statute in the Parliament needed great attention to this area also or else the daily cup of tea in the morning and a newspaper in hand would be covered with suicide headlines because that is the ultimate resort that a family, suffering from poverty, adopts.
This Child Act was a great help as it considers all the angles and triangles. It safeguarded the rights and interest of a child and adolescent by closing all the backdoors that one had in the Principal Act. This Act is in great pursuance of the Constitution of India and also the Right of Children to Free & Compulsory Education Act,2009, in pursuance of recommendations by the Standing Committee in 2013-14 under Paragraph 3 of Article 2 of Convention 138 of ILO, as it also mandated punishment of activities that harmed the education of a child or adolescent.
This Act did consider the root cause and had provision in it to protect children and also to enable easy and soothing flow of economy in the house by mandating provision for engagement of children in family business.
SUGGESTION & RECCOMENDATIONS:
The Child Act was a great help to the Indians as it was in consonance with present scenario but certain trifle things went unnoticed in the Child Act. This Child Act definitely is a boon as it includes adolescent also within its purview but now the question is about check mechanism. This Child Act allows children assisting their parents in the family business but what is not considered is the scrutinization of the same. One needs to consider whether the children engaged in family business are not subjected to child labour in pursuance of assistance and that they are made present to schools and institutions on following days. This goal of scrutinization can be achieved by registration method. The government can mandate a provision of appointing local bodies who will maintain a register containing detailed information of each person engaging their children in their business as an assistant and keep a check on the work hours, nature of job undertaken by the children and whether children are returning back to schools the next day and keep a watch on whether are they employed to such an extent that it is effecting their studies.
This suggestion is in pursuance of the guidelines set by the Hon’ble Supreme Court in the case of M.C. Mehta V/S State of Tamil Nadu in which the Court suggested to set up National Commission to come up with schemes to abolish child labour in a phased manner.
The recommendations of the court in this case also suggested a time limit to allow work for only 6 hours or so. Hence, in accordance to this the Government of India must take mandatory steps in square of the judgement passed by the Hon’ble Supreme Court in this case.
Secondly, the great framers of this Act must consider certain nature of jobs such as labour and masonry within the schedule of the Act as this loophole can be easily misinterpreted and misused by the people on the grounds of their act being in pursuance of the law mandated. The child can assist his family in their business but inclusion of labour and masonry or any arduous job in the schedule will provide a stringent hold to the section in the Child Act. During the discussion of the bill i.e.THE CHILD LABOUR (PROHIBITION AND REGULATION) (AMENDMENT) BILL, 2016, our Hon’ble Labour Minister cited his days when he assisted his family in selling potatoes but at that time there was no such concept of child labour and as such the nature of job is not arduous in nature hence it can be considered as assistance. But now if a child is assisting his family in a masonry work or at a construction site, lifting heavy objects beyond his capacity and above his strength it would definitely lead to child labour.
Finally, this Child Act allows children to be engaged in areas related to audio- visual, entertainment, films, etc. But now one needs to consider the environment at workplace. Just mere giving a relaxation to children to engage in these industries would not serve the purpose. One needs to mandate certain guideline in respect of work environment. If a child is made to play a protagonist in one of the upcoming films and he is simultaneously exposed to scoldings, thrashes and yellings for not performing as per the expectation of the direction team. Would it not hamper the mental growth of the child?
Upon perusing the Principal Act and the Child Act, it is crystal clear that the intention and the motive is to protect children rights. The child labour is never intentional or wilful but is always a compulsion in a developing country like India. Hence in this scenario it was mandatory to have a Statute in order to get children onto right path and to shape their future which consequentially would shape the future of India. Today we have the government talk about big words such as “MAKE IN INDIA”, “DIGITAL INDIA”, etc. but what they are forgetting is that they are targeting the canopy of the tree and not the roots of the tree. They are attempting to strengthen the tree but, their approach is in wrong direction and that it needs to be taken onto right one.
This Child Act passed by the Parliament though has great beneficial points but what is not considered is the loopholes that any person or an organization accused of child labour can use as a defence to its advantage and escape from the clutches of law.
Hence, we must give a deeper thought to this serious and sensitive issue if we all wish to move in the forward direction into light.
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