The Question of Child Labour and the Problematic Loopholes in the Law: A Critique of the Child Labour Amendment Bill of 2015
India ranks quite high in a sector it does not need to and that dark sector is that of child labour. It has been a serious issue for the country for decades now and no effectively positive result has come out of any governmental endeavours till now. One may easily blame it on the fact that the system is corrupt and it does not work; the solution is to aim for a wider social reform and systematic change. But at the very basic, the law should not be left with ample amount of loopholes that the exploiters can play around with. A good example of it would be the amendment to Child Labour (Prohibition and Regulation) Act, 1986, proposed by the UPA government in 2012 and passed by the present NDA government in the Budget Sessions of 2015.
THE AMENDMENT BILL PROBLEMS:
The amendment bill was primarily welcomed by Child Rights activists because it proposed setting up of a national age level to impose a complete ban on employment of children under the age of 14 at commercial spaces. It also prohibits children aged between 14-18 years from employment in hazardous occupations and processes. In addition to that, the final amendment aspires to link this to the age limit (14yrs and below) under children’s Right to Education Act, 2009.
On surface level, all of them are met by the passed amendment bill of 2012; then what seems to be the problem? Well, like most cases, the problem lies in between the lines. The main problem that struck most activists as well as the reflective civil body, is the part where the Government’s official announcement of the approval of Amendment bill 2012 mentions that “an exception has been made.” Then it goes on to describe the exception in two parts; the first part reads:
“where the child helps his family or family enterprises, which is other than any hazardous occupations or processes set forth in the Schedule, after his school hours or during vacations;” (Press Information Bureau, Government of India, The Union Cabinet , 13th May, 2015)
and the second part approves of a child working not as a labour but as an artist in audio-visual entertainment industry under safe conditions and contract. Now the first part, In other words, says that child labour is legit when you are in family business. Along with it remain a vast amount of problematic ambiguities regarding the definition of “hazardous occupations” and how to legally control exploitation of children in family enterprises.
In a report on the Amendment Bill made by The Standing Committee on Labour highlights this problem:
“The Committee are not able to understand as to how the Ministry proposes to keep a check on children working in their homes. 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.”
Now that we are back to ‘loophole’s, there is a cause behind the politics of placing these loopholes here and there. A report published by Maplecroft, a global risk analysis firm, says:
“A new study has identified the key emerging economies that supply the world with manufactured goods and natural resources, and that are fuelling the global economic recovery, as the countries with the worst record of under-age workers within their labour markets.
The Child Labour Index and map, produced by global risks advisory firm Maplecroft, rates 68 countries as ‘extreme risk’ with Bangladesh, China, India, Nigeria and Pakistan amongst those with the most widespread abuses of child workers.”
Countries with higher poverty rates rank foremost in the chart because of the need for children to supplement the family income and sustain basic life needs. No wonder India takes its rightful place in the list. But the child labour problem in India is worsen by poor enforcement of laws and faulty systems. The PIB (Press Information Bureau) announcement shows the government justifying this loophole by saying:
“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” – and not setting up any legal structure to support a thorough procedure of investigation and regulation on the very euphemistic ‘family enterprises’ and how many hours children are actually putting into work or if they are at all part of a certain family or not.
‘Family enterprises’ are clearly under unorganized sector, thus if it is made into a legal category it would be extremely hard to govern due to its undefined range. Hence, more scope for exploitation! It is especially harmful for female children who are anyway denied education and forced into domestic chores – a lifetime of unpaid labour factory custom-made for women. It also re-establishes caste-based occupations of potters, cobblers, weavers and other Dalit sects in India, allowing children to be engaged in the trades from their formative years. In India, the family enterprises cover pretty much everything that can be categorized as stressful risky work; from the notorious beedi (cigarettes) making industry to gem polishing, carpet weaving, handloom, power-loom, fireworks to different agricultural and artisanship sectors. Not to mention, the demand for child labour is pretty high in these sectors. The agricultural sector employs, mostly through family links, almost 70% of the child labour force taken into account. Yet the Bill stays silent on this matter, letting the children work in unregulated environment of the ill-reputated BT cottonfields.
Thanks to this Amendment, now only four out of the past schedule of 16 hazardous occupations and 65 processes are recognized by law and apart from the four the other sectors would not be monitored. In these other sectors then, there is no one to regulate the working conditions, or monitor the number of hours or the amount of labour children are putting in, and in due course lagging in studies for.
The Report of the Standing Committee also says that such after-school work can have adverse affect on the physical and mental health of the children as well as affecting their studies. They propose – since helping out parents with normal family chores is normal to children in the Indian context – the removal of such provisions from the Bill to reduce the exploitation of this loophole.
This Report appears to be extremely important for its detailed critique of the Bill and the following rejection of the proposed reformations by the cabinet. The Report also shows that the “Ministry have not made any efforts to identify hazardous occupations and have haphazardly copied from the Factories Act” – which was passed in 1948. Since then, the world has progressed quite a lot and new hazardous conditions for child labour has taken place – such as the use of chemical fertilizer and insecticides in agriculture, the unregulated repurposing of e-waste et cetera. These are not covered by the old and redundant Factory Acts. It also fails to take into account ILO Convention 138 by ignoring the psychological health issue of child and adolescent workers. In this regard, the report emphasizes that even if the adolescent is employed in an apparently non-hazardous industry, such as domestic service, it does not account for the mental trauma they may suffer from work conditions or employers in such places.
Another problem facing all the improbable rescuing, monitoring, regulating child labour exploitation and the few goods the revised law in question could do is the major reduction of budget (almost 40% decrease) in the 2015 sessions for the Ministry of Women and child Development.
Statistics from the Ministry of Labour shows that in the period of 2004-2014, the conviction of child labour employers has earned the government around 8 million INR. From this money – which was supposed to be spent on rescuing, rehabilitating, and giving welfare to child labourers – only 0.1million INR was spent on these during the mentioned period.
All these sketchy moves made by the government can be deciphered, in relation to the economic crisis and 2015 cutbacks in budget on education, women and children development, as a cruel attempt to alleviate poverty by sourcing children’s income into the family based economy. But these are only going to bind the poor to an unending cycle of poverty and increase the scope of child labour exploitation.
MORE FAILURES OF THE SYSTEM:
The amendment comes as a slap on the Right to Education (RTE) Act of 2009 which seeks to provide education for every child between the age of 6 to 15. This act was somewhat implemented properly through many organizations and different bodies of the education sector. As a positive result, child labour statistics decreased from 12.6 million (2001) to 4.3 million (2014) in 13 years. This Child Labour Amendment Bill of 2012 is set to cut down on that progress as it is going to encourage parents to engage children in exhaustive labour through many exploitative ways that poverty necessarily paves for them. Activists are apprehending an increase in school drop-out and the illiteracy rate. Many industries will take this chance to gulp these children down into illegal work, instead of hiring adults, as that is cost-effective and this will also further result in increased unemployment.
This course of things is surely going to affect the work ground created by activists like Kailash Satyarthi (Nobel Peace Prize winner) who has worked hard to rescue children from bonded labour and exploitation no matter how much the government denies the existence of child slavery. A hike in child trafficking to work under some illicit shield of family business or bonded labour is just what these activists are afraid of. The sad scenario of bonded child labour or rather slavery in India can be grasped from the following example, which also shows the inefficiency of the existing law and order system (and we are to trust this system to eradicate child labour problem in the first place):
The PBS New Heroes documentary shows Kailash Satyarthi’s undercover raid to free slaves especially children from a stone quarry under Indian mafias. From our urban and international knowledge, people believe that slavery has mostly been abolished in developing countries like India. But the documentary shows that on a thorough inspection, one finds various instances of child trafficking for slave trades, especially girl child for sex trade and so on. In the remotest of the places, the poorest of the people sell themselves to the rich pimps put to work by mafias, and by ending up with unpayable debt they have to find themselves as lifelong or generation long slaves. This whole process of buying and selling is illegal and more than often done under the eyes of the state government which gets some illegal commissions from these trades as well.
Along with such examples of grave concern, you can find numerous kids working in dangerous conditions right under the nose of the state authorities; from the roadside teashop to the railway food stalls. Well, as expected, nobody says anything. Until the amendment of 2012 was passed, children working in the vicinity of railway tracks was considered dangerous and illegal under the existing Child Labour Act; now it is all too vague thanks to the omission of all these specifications regarding hazardous and dangerous occupations and processes. After all these interactions with the “fabric of social reality” that the Parliament’s cabinet states to have considered to arrive at the decision of letting children work under family businesses, and opening the doors to exploitation almost impossible to regulate, the amendment bill seems to be more full of cons than pros.
WRAPPING UP THE THREADS:
On a concluding note we must look back at history once to understand how redundant and rather affecting the new Amendment to the Child Labour (Prohibition and Regulation) Act, 1986, actually is. Quoting the Cabinet’s press release from PIB again, the main argument for the ‘loophole’ can be found: “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.” This very argument is quite retrograde and falls in the same line of argument the Government had made to allow the children to labour under family’s line of work and skill based training which is not feasible either as I have already argued. Back then, those works done even in hazardous conditions, were permissible. The Government’s concern for child labour at all was born when the Child Labour Prevention bill was first pushed forward in 1985 by an NGO . That was the first time people started talking about this grave problem. But back then, the immediate motto was to make the work conditions less hazardous for children rather than completely banning child labour. The aspiration towards which all the reformations and regulations moved was to actually abolish child labour nonetheless. This 2012 amendment bill was that much awaited aspiration coming into existence but with all the wrong motives under its cover. So from that perspective, we did not progress much at all. The only impressionable differences that took place in the Amendment (2012) passed in 2015 are: a) it bans child labour in hazardous occupations (though leaving loopholes under the categorical ambiguity of “family enterprises”), b) insists that children must continue with their education facilitated by the RTE act, c) makes a distinction between group of children up to 14 years and group of adolescents of 14-18years, and their corresponding treatment, and d) it has increased penalties on employers of child workers. Other than these, not much improvement can be found in the Amendment and the latest version of the law, even though the socio-economic reality of the country has changed a lot from before. It is definitely not shaped as per the present time’s critical aspects and conditions.