CHAPTER ONE

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NTRODUC. 'ON

CHAPTER ONE

INTRODUCTION

Children are the blooming flowers of the garden of society. If the

flowers were not there, the garden would become pale and dry. So a duty

falls on society to protect these flowers from the damaging effect of exposure

to heat, cold and rain. But in practice, these blooming flowers are crudely

crushed by exposing them to the heat of labour for which they are not at all

physically fit.

Exposing children to labour appears to be a nearly universal

phenomenon. In spite of the fact that eradication of child labour has been

recommended by various fora of national and international levels, children

are exposed to labour the world over.

MEANING OF 'CHILD'

Even though child labour has become a nearly universal

phenomenon, it eludes a consensual definition. The problem of elusion

commences right from the definition of the word "child" itself. Different

countries have defined "child" in various ways. For instance, in Egypt, a

person below 12 years is termed a child. In the Philippines, it is 14 years that

constitutes the age limit for children. In India, even though 14 years

constitutes in general the age limit for children under various Children Acts,

the term "child" receives varying definitions. Under the Children Act, 1960, a

"child" means a boy who has not attained the age of 16 years or a girl who

has not attained the age of 18 years. Besides, the State Acts too have their

own definitions of children. The Bombay Children Act, 1948, for example,

defines "child" as a boy or a girl who has not attained the age of 16 years.

The Madhya Pradesh and Uttar Pradesh Children Acts also prescribe the

same age limit, that is, 16 years for children. The Punjab and Andhra

Pradesh Children Acts also stipulate 16 years as the age limit for children.

But the Madras Children Act, 1920 defines the term 'child' as a person under

the age of 14 years. The Haryana Children Act, 1974 also provides that a

"child" means a boy or girl under 14 years of age. But the Saurashtra

Children Act, 1955, and the West Bengal Children Act, 1959 define "child", as

a person who has not attained the age of 18 years.

The courts too have interpreted the word "child" differently with

respect to different statutes. Some Indian High Courts have taken a view that

"child" means a person below 18 years and other Indian High Courts have

taken different views. In Hemanta Kumar Banerjee v. Manorama Devi (1935

- Calcutta High Court), it was held that "child" means a person who is minor,

and has not attained the age of majority according to law to which he/she is

subject (cited by Deshta and Deshta, 2000).

No doubt, a person below 18 years is a minor. The Majority Act, 1875

fixes 18 years as the age of majority. According to this Act, a person below

18 years is a minor and a person who completes 18 years is a major. Only

upon the completion of this age that marks the onset of majority, a person

attains legal status to enter into a contract, to start a business, to vote in the

election, and to join the armed forces. As long as he /she is below this age

limit (i.e., 18 years), he/she is indeed a child.

As far as employment is concerned, law fixes the age limit at 14

Those who fall below the age of 14 years are regarded as children and they

are forbidden from employment. As early as 1919, the International Labour

Organisation (ILO) set a standard to regulate the employment of persons. It

regarded those below 14 years as children and prohibited their employment

in industry. By Minimum Age (Industry) Convention (No.5), 1919, the ILO

declared prohibition of employment of children below 14 years of age in

public and private industrial undertakings. Being a member country of ILO,

India ratified this Convention.

Now there is a broad agreement on the notion that children below 14

years should not be employed in industrial undertakings. Barring a very few

countries (e.g., Egypt where the law has fixed 12 years of age as the upper

age limit for the prohibition of employment of children), almost all countries

have fixed the age limit for industrial employment at 14 years. In view of this

global unanimity with respect to the chronological aspect of employment of

children, the scholars restrict the term "child labour" to employment of

persons below 14 years.

CHILD WORK

The problem of the explication of the concept of child labour does not

come to an end with the prescription of upper age limit. The problem is

confounded by the absence of definite criteria for the identification of child

labour. This is evident from the confusion of the concepts of child work and

child labour.

It is a common phenomenon that children participate in work. It has

existed and still exists in different forms in every society throughout human

history. In countries like India, it exists as a traditional phenomenon. Children

are involved in all types of work within the family or outside. They give a

helping hand to their parents in household chores and also in family

occupations. If the family is engaged in agriculture, the children assist their

parents in farm activities. If the family is engaged in a craft or trade, they

work with their parents and also learn the technical skills related to the job

they may inherit.

Various literary texts describe how children shared the workload of

the parents at home, and how they rendered manual service to their gurus

(preceptors) during their brahmacharya period (learning stage). The texts

insist upon imbibing work culture during the learning stage. The ancient

Indian savants and teachers called upon the initiates in the bra hmacha rya

ashrama to contribute their shram or labour to cow-shed, hermitage, and

garden, apart from textual reading, recitation, and meditation.

The work the child did thus at their parents' home or in the preceptor's

hermitage was not arduous. It was so light that the children themselves

chose to pursue and reveled in performing it. The work was considered to be

an integral part of a child's socialization process. Even today, children

participate in work at home or outside and it is considered a part of the

socialization process. By participating in work, children gain vocational skills

and learn their traditional family occupations without any formal training

outside. Such a learning process helps them acquire skills and these skills

enable them to have enough training to take up the roles and tasks of

adulthood into which they grow.

As the work thus constitutes a vehicle for their personal development

and social advancement, it is considered a blessing for the children. It is

thought that they can become useful members of the community by

acquiring the right sort of skills and a sense of responsibility through the

work experience. It is keeping this aspect in view that in the schemes of

basic education introduced on the advice of Gandhiji in India, young boys

and girls are called upon to take vocational training by using their limbs.

The work experience they get thus is primarily developmental and not

economic. The work, as a direct fulfillment of their natural abilities and

creative potentialities, is conducive to their physical and intellectual growth.

Further, the work experience helps them to develop the required skills to

manage their families.

As the work experience, either at home or outside, provides the

children an opportunity for direct acquisition of natural abilities and creative

potentialities, it is conducive to their physical and intellectual growth. It does

not interfere with their development and well-being. As B.R. Path (1988)

observes, the work experience the children get in their formative years

promotes their development. The participative work does not interfere with

their growth, comfort, health, and happiness. Teena Amrit Gill (1997) also

endorses these observations. He asserts that child work does not affect the

child's physical and mental capabilities; rather it is appropriate to these

aspects of a growing child. It does not interfere with the child's

developmental activities like education and play. Indeed, it does nourish the

child's physical, emotional, and mental well-being and facilitates its social

advancement and improvement in the quality of its life. Above all, it enables

the child to participate in the family responsibility of maintaining the

household, developing the family enterprise and augmenting the family

income. Summing up these observations about child work, Suvira

Chaturvedi concludes that work experience is "a meaningful exercise of

acquiring the right sort of skills and responsibilities for the child to become a

useful member of the community. Work is a valuable socialisation process of

personal development" (1994: 13).

CHILD LABOUR

Child labour comes close to child work. It embodies the basic

ingredient of child work, that is, participation of children in economic activity.

Because of their similarity, often "child labour" and "child work" are used

interchangeably. But, as a matter of fact, both of them are different. Child

labour is more complex than child work.

Some writers define child labour as the productive work done by the

children, whether paid or unpaid, within the family or outside, on a regular or

casual basis, or on a part-time or full-time basis. To them, any work done by

children constitutes child labour as long as it is productive, no matter

whether it is paid or unpaid (Report of the Committee on Child Labour,

1981; Concerned for the Working Children, 1985; Sharma and Mittar,

1990; Patil, 1991; Pati, 1991; Sekar, 1993; Departments of Labour and

Women's Development & Child Welfare, Government of Andhra Pradesh,

1993; Dag, 1994; Tripathy, 1996; Walther, 1997; Massun, 1998;

Subrahmanya, 1999).

When a non-remunerative productive work is thus equated with child

labour, it makes no difference between child work and child labour.

Considering this lacuna in such definition, some writers give an economic

dimension to the approach to child labour. To them, it is co-extensive with

any work done by a child for economic gain" (Mittal, 1994: 7). In their view,

it is this economic aspect that distinguishes child work from child labour.

Keeping this aspect in view, V.V. Giri describes child labour as an economic

practice (cited by Varandani, 1994). He defines it as employment of children

in gainful occupation. Many others also (Singh and Verma, 1987; Patil, 1988;

Sinha, 1991; Vidyasagar, 1994; Chandra, 1997; Mehta and Jaswal, 1997;

Patil, 1999; Reddy, 1999) define child labour in this vein: employment of

children in gainful occupation. In their view, it is only when children take up

employment as wage earners in an economic activity and receive

remuneration directly or indirectly that they come within the meaning of child

labour. They may take up employment for the purpose of earning a livelihood

for themselves or for their families. Should their work go economically

unrewarded, that is, unpaid, it may not fall within the meaning of child labour.

P.L. Mehta and S.S. Jaswal (1997) assert that even if a child is

marginally working or employed in an economic activity, it can be treated as

child labour. In their view, the nature or duration of employment is not

material for child labour. Remunerative or gainful employment can be the

criterion.

The writers who take the gainful employment of children in an

economic activity or in an occupation as the criterion of child labour do not

pay attention to the consequential aspect of such employment. Even though

the employment may be economically gainful for the child incumbent, in a

way it may be disastrous or hazardous to the physical, mental, moral and

social well-being and development of the child. To many writers, the

consequential aspect of employment for the child is a very important

criterion of child labour. When the employment is detrimental to a child's

physical, mental, moral and social well-being and development (Shaji, 1981;

Tripathy, 1991; Singh, 1992; Kulshreshtha, 1994; Mehta and Jaswal, 1997;

Reddy, 1999;), or hinders, arrests or distorts its natural growth process and

prevents it from attaining the full-blown manhood (Committee on Child

Labour, 1981; Sinha, 1994), or interferes with its full physical development or

deprives it of opportunities for a desirable minimum of education or the

needed recreation, or endangers its health or safety, or keeps it away from

play and other activities needed for its development, it is considered as child

labour (Sekar, 1993).

All these definitions combined, the concept of child labour includes

three characteristics:

First, the child undertakes a productive work or service,

connected with an industrial or non-industrial activity in

organized or un-organized sector within or outside the family

on regular or part-time basis.

Second, such work undertaken by the child entails wage, which

may be paid directly or indirectly.

Third, though the work is economically gainful, it is detrimental

to the physical, mental, moral and social well-being and

hampers the course of growth and development of a child.

These definitions view child labour as the work done by a child in a

productive activity in the course of wage employment, implying a contractual

nexus between the child worker and an employer. The International Labour

Organisation (1983) also holds a view about child labour along this line. It

defines child labour as the case of 'children prematurely leading adult lives,

working long hours for low wages under conditions damaging to their

health and to their physical and mental development" (as quoted in

Resource Material - Workshop on Child Labour, 1997 : 10). But these

definitions exclude from the concept of child labour the employment of

children in occupations and employment carried on by themselves. To set

right this deficiency, Alakh Narayan Sharma declares that the term child

labour includes "wage-labour as well as self-employed children working

independently as well as in family enterprises" (1979: 9).

Work as such is not a deplorable phenomenon for children. It

provides them vocational experience and enables them to acquire work

skills. It is only when the children undertake the work normally done by the

adults for economic gain that it does become psychologically disastrous,

physically harmful, and morally dangerous. When they remain juvenile, they

are physically and mentally unfit for assuming the roles and the tasks of

adulthood. When they enter into the world of adulthood, while remaining

juvenile, no doubt, such entry will be disastrous and harmful to them. Since,

as the United Nations Children's Emergency Fund (UNICEF) observed, it

exerts undue physical or psychological stress and it denies them

opportunities for development, both physical and mental. Whether they

undertake the adult work on a regular or casual basis and do it for the whole

day or for a few hours in a day, or in the family or outside the family, for

economic gain for themselves or for the family, the kind of work they do will

certainly be injurious and harmful to them. It is under such a condition that

the phenomenon of child labour operates.

It is to be noted here that mere assumption of adult work does not

constitute child labour. It must entail an economic gain. It is only when

children assume adult roles or tasks for an economic gain, which will benefit

themselves or their family that the assumption of adult roles and tasks

becomes labour. No matter whether the quantum of economic gain is small

or considerable, the work done by children becomes labour as long as it is

remunerative. Despite being economically beneficial, child labour will be

physically and psychologically disastrous and harmful.

REACTION OF LAW TO CHILD LABOUR

Considering the disastrous consequences of child labour, the

international community disapproves and condemns the employment of

children in adult tasks. Reflecting the view of the international community on

the issue, the International Labour Organisation (ILO) has disapproved of

child labour. It has taken up the abolition of child labour as one of its main

aims. It has committed itself to the promotion of the well-being of children in

the fields which fall within its competence. As it views child labour as a threat

to the well-being of children, it has turned its guns on child labour and strives

its best to abolish it. The major part of its work towards the abolition of child

labour has been the adoption at the International Labour Conferences of a

series of conventions and recommendations on the subject of employment

of children. It has so far adopted 18 conventions and 16 recommendations

on the subject of child labour. The conventions prescribe the minimum age

for employment in industry, in agriculture, in mining, and on maritime

vessels. The recommendations also suggest the minimum age for

employment in family undertakings, in coal mines, in underground work, and

in non-industrial establishments.

Of the ILO conventions on the subject of child labour, the convention

adopted in the year 1919 is of signifjance. Designated the Minimum Age

(Industry) Convention (No.5), 1919, the convention prohibits the employment

of children below 14 years of age in any public and private industrial

undertakings. It is this convention that has prompted many a country of the

world to legally prohibit the employment of children below 14 years in

industrial undertakings. India is one among the countries that ratified the ILO

Convention (No.5), 1919 and prohibited through law the employment of

children below 14 years in industrial undertakings.

The history of child labour legislation in India is much older than the

ILO's record of work against child labour. Even as early as the nineteenth

century, India grappled with the issue of child labour. Treating the issue as a

grave problem, it enacted an Act called the Factories Act, 1881, to protect

children against exploitation by prohibiting child labour. The Act set the

minimum age of employment in factories at 7 years and allowed the

employment of children above 8 years. But it prohibited successive

employment of child workers in two factories on the same day and restricted

the working hours to 9 a day. The Act was applicable to factories, employing

100 or more workers and therefore gave no protection to children employed

in small factories.

Legislation prohibiting the employment of children in mines was also

evolved with the passing of the Mines Act in 1901, which prohibited the

employment of a child below 12 years in any mine where the conditions were

dangerous to their health and safety. This Act restricted child employment in

open cast mines with a depth of less than 20 feet.

In 1922, the Factories Act was amended to raise the minimum age of

employment to 15 years in general. The amendment restricted working

hours to 6 a day as against 9 hours allowed previously and provided for

interval of half an hour if children were employed for more than 5 /2 hours.

Following this amendment of the Factories Act, in the year 1923, the

Mines Act was amended to increase the minimum age of employment in

mines to 13 years. The amendment restricted the weekly hours of work for

children to 54 under ground and 60 above ground.

In the year 1929, the Royal Commission on Labour set up under the

chairmanship of John Henry Whitley visited India and found the children

working in industries. It recommended the legal prohibition of work of

children below the age of 10 years. It further recommended that if children

above 10 years happened to be employed, their names should be entered in

the wage books, and that they should not be allowed to work overtime and

take work home. The Commission insisted upon the prohibition of pledging

of children, which was then a common practice in India. However, the

Commission adopted a conciliatory approach towards the issue of

employment of children and recommended co-operation between the

Government, local authorities, and the employers to develop welfare centres

and clinics for child workers.

A variety of legislations resulted from the report of the Royal

Commission on Labour. In 1931, an Act was passed with a view to giving

effect to the recommendations of the Commission. It was the Indian Ports

Act. This Act prescribed 12 years as the minimum age for persons to be

employed for handling goods in ports. Following this Act, in 1932, the Tea

District Emigrant Labour Act that was passed to check the migration of

labourers stipulated that no child below 16 be employed or allowed to

migrate unless the child was accompanied by the parents or adults on whom

the child was dependent.

In 1933, the Children (Pledging of Labour) Act prohibited the making

of agreements by parents or guardians to pledge the labour or services of

their children * for taking advances. Under this Act, any agreement, written

or oral, express or implied, by which the parent or guardian of a child

pledges its labour or services against consideration of the benefit to be

received in lieu thereof, was declared null and void. The Act declared that if

a parent or guardian made an agreement to pledge the labour of his/

her child, he or she would be made liable for punishment with fine of

Rs.50. If any person would make an agreement with a parent or

guardian to have the labour of his / her child pledged, he I she would

be made liable for punishment with fine of Rs.200. The punishment

for employing a child whose labour had been pledged was fine up to

Rs.200.

In 1934, the Factories Act prohibited work in factories for children

below 12 years. It permitted employment of children between 12 and 15

years, but only upon medical certification of their physical fitness. The

working hours for them were restricted to 5 a day.

In 1935, the Mines Act, 1901 was amended to introduce division of

children according to age group. It raised the minimum age to employment in

mines to 15 years, and required a certificate of physical fitness from a

qualified medical practitioner for the employment of those between 15 and

17 years of age. It also restricted working time to a maximum of 10 hours a

day and 54 hours a week for work above the ground and 9 hours a day for

work under ground.

* The Act regarded those who were below 15 years of age as children.

In 1938, one more Act joined the posse of anti- child labour laws. It

was the Employment of Children Act, 1938. Enacted in response to the

recommendation of the Royal Commission on Labour, this Act was intended

to prohibit the employment of children. It sought to check the abuses arising

out of the employment of children in workshops, which were outside the

scope of factory legislation. It laid down that no child who had not completed

15 years of age must be employed or permitted to work in any occupation

connected with (a) transport of passengers, goods or mails by railways; or

(b) cinder-picking, clearing of an ash pit, or building operation in the railway

premises; or (C) the work in a catering establishment at a railway station,

involving the movement of a vendor or any other employee of the

establishment from one platform to another or into or out of a moving train;

or (d) the work relating to the construction of a railway station or with any

other work where such work is done in close proximity to, or between, the

railway lines; or (e) a port authority within the limits of any port.

The Act, however, permitted the employment of children of more than

15 years and less than 17 years in any one of above-mentioned occupations

on condition that the certificate of age of such children must be produced

from a prescribed medical authority. All employers employing such children

must maintain registers showing the name and date of birth of every child

below 17 years of age, employed or permitted to work, the nature of work

they do, etc. The child employees must be allowed a rest interval of at least

12 consecutive hours in a day, which must include at least 7 consecutive

hours between 10 p.m. and 7 a.m.

The Act further prohibited the employment of children below 14 years

of age in workshops connected with beedi making, cement manufacturing

including bagging of the cement, cloth printing, dyeing, weaving,

manufacture of matches, explosives and fireworks, mica cutting and splitting,

shellac manufacture, soap manufacture, tanning and wool cleaning. (In Uttar

Pradesh, the Act was extended to the brassware and glass bangle

industries also). However, the Act provided that if any of these processes

was carried on in any workshop by the occupier with the aid of his family

only without employing any hired labour or in any school established,

assisted or recognized by the State Government, employment of children

below the age of 15 years would not be prohibited. The Act also laid down

that railway and port authorities must maintain registers showing names,

dates of birth, rest intervals, etc. of children below 17 years.

The Act treated the breach of its provisions as a punishable offence -

the penalty was simple imprisonment or a fine up to Rs.500 or both.

The Factories Act, 1948

In the post-Independence era, a comprehensive Factories Act was

passed in 1948. This Act aims at regulating the labour in factories. It applies

to the establishments employing 10 or more workers with power or 20 or

more workers without power.

The Act prohibits the employment of children below 14 years in any

factory. This prohibition is absolute and not restricted to employment in any

of the manufacturing processes. Thus, a child employed as a sweeper to

clean up the floor of a factory is in contravention of the Act, even if he/she is

not employed in any of the manufacturing processes (Deshta and Deshta,

2000). However it permits the employment of young persons above 14 years

but below 18 years on condition that they must have been certified to be

physically fit for employment by a qualified surgeon. They shall not be

employed in two factories on the same day; they shall not be employed or

permitted to work for more than 4 1/2 hours in a day; they shall not be

required to work for two consecutive shifts; they shall not be employed

during night (i.e., from 6 p.m. to 7 a.m.); they shall not be employed in any

hazardous work (like cleaning, lubricating or adjusting any part of prime

mover or of any transmission machinery while the prime mover or

transmission machinery is in motion); or pressing cotton while the cotton

opener is at work; or heavy work (like lifting, carrying or moving heavy

weight).

The Act lays down that if a child below 14 years is employed in a

factory in contravention of the Act, "the occupier and manager of the

factory shall each be guilty of an offence and punishable with imprisonment

for a term which may extend to two years or with fine which may

extend to one lakh rupees or with both, and if the contravention is

continued after conviction, with a further fine which may extend to one

thousand rupees for each day on which the contravention is so

continued".

The same penal provisions apply if adolescents who are above

14 years but below 18 years are employed without certificate of

fitness.

Constitution

In 1950, when the Constitution of India came into force, it put a

categorical stop to the employment of children below 14 years. Article 24

lays down that "No child below the age of 14 years shall be employed to

work in any factory or mine or in any other hazardous employment".

The Constitution directs the State to bestow greater attention on the

protection of children. Article 39 (e) of the Directive Principles of State Policy

requires the State to evolve a policy towards ensuring "that the health and

strength of workers, men and women, and the tender age of children are not

abused and that citizens are not forced by economic necessity to enter

avocations unsuited to their age or strength".

Article 39 (f) makes it obligatory on the part of the State to ensure

"that children are given opportunities and facilities to develop in a healthy

manner and in conditions of freedom and dignity and that childhood and

youth are protected against exploitation and against moral and material

abandonment".

In furtherance of this laudable objective in the Constitution concerning

the well-being of children, a number of laws have been enacted in the

Republican setup, concerning child labour inter alia. The Plantations Labour

Act, 1951, the Mines Act, 1952, the Merchant Shipping Act, 1958, the

Apprentices Act, 1961, the Motor Transport Workers Act, 1961, the Atomic

Energy Act, 1961, the Beedi and Cigar Workers (Conditions of Employment)

Act, 1966, and the State Shops and Establishments Acts are notable among

them.

The Plantations Labour Act, 1951

The Plantations Labour Act, 1951 applies to plantations of tea, coffee,

rubber, cinchona, and cardamom which admeasure 5 hectares or more in

which 15 or more persons are employed. The State Government is,

however, empowered to extend, all or any of the provisions of this Act to any

land used or intended to be used for growing plantation even if it

admeasures less than 5 hectares and the number of persons employed

therein is less than fifteen. Provisions exist in the Act to prevent

fragmentation of plantations by employers into small units to bypass the Act.

Originally the Act prohibited the employment of children below 12

years. But after the passage of the Child Labour (Prohibition and Regulation)

Act, 1986, the cut-off age was raised to 14 years. However, the Act permits

the employment of young persons between 15 and 18 years, provided they

are certified to be fit for work by a surgeon. Such a certificate is valid only for

one year. It should be renewed every year till the adolescents attain 18

years.

The contravention of provisions regarding employment of children

is liable for punishment. The punishment may be imprisonment which

may extend to three months or fine which may extend to Rs.100 or

both.

The Mines Act, 1952

The Mines Act, 1952 replaced the Mines Act, 1901. It contains

provisions with respect to employment of children, which are more stringent

than those of the Factories Act, 1948. It prohibits employment of persons

below 18 years to work in any mine or part thereof. However, apprentices

and other trainees not below 16 years of age, may be allowed to work in a

mine or part thereof under proper supervision by the manager,

provided in the case of trainees other than apprentices, prior approval of the

Chief Inspector or an Inspector of Mines has been obtained before they are

allowed to work.

The violation of provisions of the Act regarding the employment

of persons below 18 years, is liable for punishment. The punishment

may be fine which may extend to Rs.500.

The Merchant Shipping Act, 1958

This Act applies to sea-going ships. Originally it prohibited the

employment of persons below 15 years in any capacity in any ship.

But after the passage of the Child Labour (Prohibition and Regulation)

Act, 1986, the minimum age of employment in any capacity in a ship

was raised to 14 years.

Now as per the Act, no person below 14 years of age shall be

engaged or carried to sea to work in any capacity in any ship, except

(a) in a school ship or training ship; or (b) in a ship in which all

persons employed are members of one family; or (c) in a home-trade

ship of less than two hundred tons gross.

However, the Act permits the employment of persons above 14

years but below 18 years in sea-going ships. Yet, it imposes a

restriction on the employment of persons below 14 years. They shall

not be engaged in trimming or stoking in ships. However, they may

be engaged (a) in the work of trimming or stoking in a school ship or

training ship; or (b) in the work of trimming or stoking in a ship which

is mainly propelled otherwise than by steam; or (c) in the work of

trimming or stoking in a coasting ship. Nevertheless, the Act does not

allow persons below 16 years to work as trimmers or stokers in a

coasting ship. Only those above 16 yeas but below 18 years can be

engaged in the work of trimming or stoking in a coasting ship.

The Act lays down that when the persons above 14 years but

below 16 or 18 years are to be employed in the sea-going ships,

they shall be certified to be physically fit by a prescribed authority.

The Act treats the contravention of the above provisions as a

punishable offence. In the event of contravention, the master who has

command or charge of the ship is liable for a fine up to Rs.50. The

parent or guardian is also liable for a fine up to Rs.50.

The Apprentices Act, 1961

This Act is intended to regulate and control the training of apprentices

in industrial concerns. It provides for practical training to the graduate and

diploma engineers. But it does not allow engaging any person below 14

years as an apprentice to undergo apprenticeship training. Under the Act,

any person who is above 14 years of age and satisfies the prescribed

standards of education and physical fitness can undergo apprenticeship

training in a designated trade under an employer.

The Act provides that when the persons above 14 years are engaged

as apprentices, their working conditions shall be as follows:

1. Their weekly and daily hours of work shall be such as

may be prescribed in the contract of apprenticeship.

2. They shall not be required and allowed to work

overtime except with the approval of the apprenticeship

appraiser.

3. They are entitled to such leave as may be prescribed

and to such holidays as are observed in the

establishment in which they are undergoing training.

The Act further provides that the employers shall pay compensation to

apprentices in accordance with the provisions of Workmen's Compensation

Act, 1923, if personal injury is caused to them by accident arising out of and

in the course of their training as apprentices.

The Motor Transport Workers Act, 1961

This Act applies to the motor transport undertakings employing five or

more workers. This Act prohibits the employment of children below 14 years

of age (i.e., those who have not completed 14th year) in any capacity in

motor transport undertakings. However those who have completed 14th

year but not completed 18th year are eligible for employment under this

Act. But they can be employed only upon certification of fitness.

The Act provides that the contravention of the provisions of the Act

shall be punishable with imprisonment up to three months or fine up to

Rs.500 or both. The continuing offence shall be punishable with

imprisonment for a term which shall not be less than six months, but which

may extend to two years, or fine which may extend to Rs.1,000, or

both.

The Atomic Energy Act, 1962

This Act prohibits employment of children below 18 years of age as

radiation workers except with the prior written permission of the competent

authority, i.e., an officer or authority appointed for this purpose by the Central

Government by issuing necessary notification.

The Beedi and Cigar Workers (Conditions of Employment) Act, 1966

This is a special legislation for regulating conditions of the work of

beedi and cigar workers. Although the Factories Act applies to such workers,

the manufacturers of beedi can avoid the provisions of the Factories Act as

they get the work of manufacturing of beedi done through contract labourers

and also in private dwelling houses, As there is no factory premises for the

beedi works, the manufacturers of beedi can easily escape the provisions of

the Act. Hence this special legislation for beedi and cigar work.

This Act provides that no child below 14 years should be required or

allowed to work in any industrial premises. However, young persons who

have completed 14 years but not completed 18 years may be allowed to

work, but shall not be allowed to work between 7 p.m. and 6 am. The Act

provides for penalties for any breach, which may be imprisonment up to six

months or a fine up to Rs.5,000, or both.

State Shops and Establishments Acts

Different States have enacted their own statutes for regulating

conditions of workers in shops and establishments. These Acts apply to

shops, establishments, restaurants, eating houses, residential hotels,

theatres, and places of public of amusement or entertainment. The State

Governments are empowered to extend the application of the Acts to such

other establishments as may be considered necessary. These Acts prohibit

the employment of children in shops and establishments, and they cannot be

employed even if they are the family members of the employer.

Generally speaking, a child is a person who has not completed the

age of 14 years. But before the passage of the Child Labour (Prohibition

and Regulation) Act, 1986, different States had prescribed varying

minimum ages. The following States / Union Territories had prescribed 12

as the age at employment in a shop or establishment: Goa, Daman & Diu

Rajasthan, Orissa, Delhi, Madhya Pradesh, Jammu & Kashmir, Tripura,

Uttar Pradesh, Bihar, and Karnataka.

The age of employment in a shop or establishment was 14 years in

the following States: Andhra Pradesh, Assam, Tamil Nadu, Kerala, Punjab,

Haryana, and Himachal Pradesh.

In the State of Maharashtra, the minimum age for employment of a

person in a shop or establishment was 15 years.

Now after the passage of Child Labour (Prohibition and

Regulation) Act, 1986, all States / Union Territories have fixed 14 years

of age as minimum age for employment in a shop or establishment.

No person below 14 years shall be required or allowed to work in

any shop or establishment.

The State Shops and Establishments Acts, however, permit the

employment of persons who are above 14 years but below 17 years

to work in shops and establishments. But such young persons shall

not be required or allowed to work in any shop or establishment

before 6a.m. and after 7p.m.

The Acts further lay down that no such young person shall be

required or allowed to work in any establishment for more than 7

hours in a day and 42 hours in a week, nor shall they be allowed to

work overtime.

The contravention of the above provisions is liable for

punishment. But the penalty varies from State to State. For example,

in Kerala, the penalty is a fine up to Rs.50. But in Tamil Nadu, for the

first offence, the penalty is a fine which may extend to Rs.25 and for

the second or subsequent offence, the fine is up to Rs. 250.

The Child Labour ( Prohibition and Regulation) Act, 1986

This is a comprehensive Act dealing with child labour. It was enacted

following the ILO Convention No.82 Concerning Prohibition and Immediate

Action for the Elimination of the Worst Forms of Child Labour adopted at the

87th session of the International Labour Conference.

This Act repeals the Employment of Children Act, 1938. The main

object of the Act is to prohibit engagement of children in occupations and

processes, which are unsafe and harmful to them. Keeping in view the

tender age and the need for the personality development of children, the Act

imposes this prohibition.

The Act begins with the definition of "child". It defines "child' as a

person who has not completed his I her 14th year of age. The Act covers

shops, commercial establishments, workshops, farms, residential hotels,

restaurants, eating houses, theatres, and other places of public amusement

or entertainment. It defines workshop to mean any premises wherein any

industrial process is carried on.

The Act prohibits employment of children in occupations connected

with-

1. transport of passengers, goods or mails by railway;

2. cinder picking, clearing of an ash pit or building operation in

the railway premises;

3. work in a catering establishment at a railway station,

involving the movement of a vendor or any other employee

of the establishment from one platform to another or into or

out of a moving train;

4. work relating to the construction of a railway station or with

any other work where such work is done in close proximity

to or between the railway lines;

5. a port authority within the limits of any port;

6. work relating to selling of crackers and fireworks in shops

with temporary licences;

7. abattoirs/slaughter houses;

8. automobile workshops and garages;

9. foundries;

10. handling of toxic or inflammable substances or explosives;

II. hand loom and powerloom industry;

12. mines (underground and under water) and collieries;

13. plastic units and fiberglass workshops;

The Act further prohibits the employment of children in the following

processes:

1. Beedi making;

2. Carpet weaving including preparatory and incidental process

thereof;

3. Cement manufacture, including bagging of cement;

4. Cloth printing, dyeing and weaving including processes,

preparatory and incidental thereto;

5. Manufacture of matches, explosives and fireworks;

6. Mica cutting and splitting;

7. Shellac manufacture;

8. Soap manufacture;

9. Tanning;

10. Wool cleaning;

II. Building and construction industry including processing and

polishing of granite stones;

12. Manufacture of slate pencils (including packing);

13. Manufacture of products from agate;

14. Manufacturing processes using toxic metals and substances

such as lead, mercury, manganese, chromium, cadmium,

benezene, pesticides, and asbestos;

15. "Hazardous Processes" and "dangerous operations" as

notified in the rules made in the Factories Act, 1948, namely,

1. Ferrous Metallurgical Industries:

- Integrated iron and steel

- Ferro alloys

- Special steels

2. Non-ferrous Metallurgical Industries:

- Primary Metallurgical Industries, namely, zinc,

lead, copper, manganese and aluminium

3. Foundries (ferrous and non-ferrous):

- Castings and forgings including cleaning or

smoothening/roughening by sand and shot

blasting.

4. Coal (including coke) Industries

- Coal, Lignite, Coke, etc.

- Fuel gases (including coal gas, producer gas,

water gas)

5. Power generating Industries

6. Pulp and Paper (including paper products) Industries

7. Fertiliser Industries:

- Nitrogenous

- Phosphatic

- Mixed

8. Cement Industries

- Portland cement (including slag cement,

puzzolona cement and their products)

9. Petroleum Industries:

- Oil refining

- Lubricating oil and greases

10.Petro-chemical Industries

11.Drugs and Pharmaceutical Industries:

- Narcotics, Drugs and Pharmaceuticals

12.Fermentation Industries (Distilleries and Breweries)

13.Rubber (Synthetic) Industries

14.Paints and Pigment Industries

15.Leather Tanning Industries

16.Electroplating Industries (Electrolytic plating, oxidation

of metal articles by use of an electrolyte containing

chromic add or other chromium compounds)

17.Chemical Industries:

- Coke oven bye-products and Coaltar distillation

products

- Industrial gases (nitrogen, oxygen, acetylene

argon, carbon dioxide, hydrogen, sulphur

dioxide, nitrous oxide, halogenated

hydrocarbon, ozone, etc.)

- Industrial carbon

- Alkalis and Acids

- Chromates and Dichromates

- Leads and its compounds

- Electro-chemicals (metallic sodium, potassium

and magnesium, chlorates, perchlorates and

peroxides)

- Electro-therm al products (artificial abrasive,

calcium carbide)

- Nitrogenous compounds (cyanides,

cyanamides and other nitrogenous compounds)

- Phosphorus and its compounds

- Halogens and halogenated compounds

(chlorine, fluorine, bromine and iodine)

- Explosives (including industrial explosives and

detonators and fuses)

18. Insecticides, Fungicides, Herbicides and other

Pesticides Industries

19. Synthetic Resin and Plastics

20. Man-made fibre (cellulosic and non-cellulosic)

Industries

21. Manufacture and repair of electrical accumulators

22. Glass and Ceramics

23. Grinding or glazing of metals

24. Manufacture, handling and processing of asbestos

and its products

25. Extraction of oils and fats from vegetable and

animal sources

26. Manufacture, handling and use of benzene and

substances containing benzene

27. Manufacturing processes and operations involving

carbon disulphide

28. Dyes and Dyestuff including their intermediates

29. Highly flammable liquids and gases

16. Printing which includes composing types for printing by

letter press lithography, photogravure of other similar

process or book binding;

17. Cashew and cashew nut descaling and processing;

18. Soldering processes in electronic industries;

19. "Agarbatti" manufacturing;

20. Automobile repairs and maintenance including processes

incidental thereto, namely, welding, lathe work, dent

beating and painting;

21. Brick kilns and roof tiles units;

22. Cotton ginning and processing and production of hosiery

Goods;

23. Detergent manufacturing;

24. Fabrication workshops (ferrous and non-ferrous);

25. Gem cutting and polishing;

26. Handling of chromite and manganese ores;

27. Jute textile manufacture and coir making;

28. Lime kilns and manufacture of lime;

29. Lock making;

30. Manufacturing processes having exposure to lead such as

primary and secondary smelting, welding and cutting of

lead-painted metal constructions, welding of galvanized or

zinc silicate, polyvinyl chloride, mixing (by hand) of crystal

glass mass, sanding or scrapping of lead paint, burning of

lead in enamelling workshops, lead mining, plumbing, cable

making, wire patenting, lead casting, type founding in

printing shops, Store type setting, assembling of cars, shot

making and lead glass blowing;

31. Manufacture of cement pipes, cement products and other

related work;

32. Manufacturing of glass, glassware including bangles,

florescent tubes, bulbs and other similar glass products

33. Manufacture of dyes and dye stuff;

34. Manufacturing or handling of pesticides and insecticides;

35. Manufacturing or processing and handling of corrosive and

toxic substances, metal cleaning and photo engraving and

soldering processes in the electronic industry;

36. Manufacturing of burning coal and coal briquettes;

37. Manufacturing of sports goods involving exposure to

synthetic materials, chemicals and leather;

38. Moulding and processing of fibreglass and plastic;

39. Oil expelling and refinery;

40. Paper making;

41. Potteries and ceramic industry;

42. Polishing, moulding, cutting, welding and manufacture of

brass goods in all forms;

43

Process in agriculture where tractors, threshing and

harvesting machines are used and chaff cutting;

44

Saw mill - all processes;

45

Sericulture processing;

46

Skinning, dyeing and processes for manufacturing of

leather and leather products;

47

Stone breaking and stone crushing;

48

Tobacco processing including manufacturing of tobacco,

tobacco paste and handling of tobacco in any form;

49

Tyre making, repairing, re-treading and graphite

benefication;

50. Utensils making, polishing and metal buffing;

51. "Zari" making (all processes)

52. Electroplating;

53. Graphite powdering and incidental processing;

54. Grinding or glazing of metals;

55. Diamond cutting and polishing;

56. Extraction of slate from mines;

57, Rag picking and scavenging

The list (schedule) of prohibited occupations and processes is not

exhaustive. The Act authorises the Central Government to add any

occupation or process to the list, by giving notification in the Official

Gazette. *

The Act, however, permits the employment of children in industries,

subject to regulation. The Act admits that the employment of children in

industries is inevitable in the case of children who belong to the families that

suffer from the pangs of acute poverty. As long as the families depend in a

way on the earnings of children inter alia for their maintenance, prohibition of

employment of children may spell economic doom to such families. So the

consideration of the need of poor families to send children for employment

and earning forces the necessity to permit the employment of children in

industries. While there is no Government scheme to help such poverty-

stricken families to meet their economic needs adequately, such condition

also favours and necessitates a consideration for the employment of

children.

Further, the children who do not attend schools or drop out of studies

for some reason cannot be allowed to remain idle, since the idle children

may turn out to be bad elements because of the absence of any alternative

* Under this statutory provision, based on the recommendation of the TechnicalAdvisory Committee on Child Labour, on August 1, 2006, the CentralGovernment has issued a notification banning the employment of children asdomestic servants or workers and as helpers in dhabas, restaurants, hotels,teashops, resorts, spas, and other recreational centres. The Committeeconsidered these occupations hazardous to children and hence recommendedprohibition of employment of children therein.

activity that will involve or absorb them. It is this consideration which

necessitated the Act to relax the prohibitive conditions for the employment of

children and to permit the same. Above all, such a step would, in a way,

provide an opportunity for the children to do something constructive instead

of remaining idle. The work they do in such a situation will enable them to

develop their potentialities and also to do something for the good of the

family.

Above all, the economic plight of the orphaned or destitute children

forces the Act to consider the relaxation of the prohibition of employment in

their case, since they have to support themselves only by their own efforts.

As work is the justifiable means for earning a livelihood, there is nothing

wrong in permitting them to work and to earn their livelihood.

Under these circumstances, the Act allows the occupiers of

establishments to employ children below 14 years. However, the permission

of the Act to employ the children is not unbridled. The Act permits the

employment of children only in non-hazardous activities and processes. As

such employment would not be detrimental to their physical well-being, the

Act allows the same. It requires such employers to notify the Inspector of

Labour in case they employ children in their establishments within 30 days

from the date of such employment.

The Act provides that no child so employed shall be allowed or

required to work between 7 p.m. and 8 am. and to work overtime. The

period of work shall not exceed three hours and no child shall work for more

than three hours before he/she has had a rest interval of at least one hour.

The total working hours including the rest interval and the time spent in

waiting for work shall not be spread over more than 6 hours per day. It has

also been provided that no child shall be required or permitted to work in any

establishment on any day on which he/she has already been working in

another establishment.

The Act lays down that each child worker shall get a holiday of one

whole day per week which day shall be specified by the occupiers and shall

not be altered more than once in three months. The Act requires

maintenance of register containing specified information regarding child

workers such as the name, date of birth, hours and periods of work,

intervals of rest, nature of work, and such other particulars as may be

prescribed. The register shall be made available for inspection by an

Inspector under the Act.

The Act further provides that the appropriate Government may make

rules for the health and safety of children. The rules may provide for

cleanliness, disposal of wastes, ventilation and temperature and other

matters in this regard as in the Factories Act.

The Act contains provisions dealing with offences and penalties. In

case of employment of children in violation of the provisions of this Act, the

penalty is imprisonment for a term of not less than 3 months but which

may extend to one year, or a fine of not less than Rs. 10,000 but which

may extend to Rs. 20,000 or both and if the like offence is again committed

by the employer, he/she shall be punishable with imprisonment for a term

which shall not be less than 6 months but which may extend to two years. It

has been further provided that for failure to give notice as required under the

Act, or failure to maintain register or failure to display notice or failure to

comply with or contravention of any other provisions of the Act or the rules

made thereunder, the employer shall be punishable with simple

imprisonment up to one month or fine up to Rs. 10,000 or with both. The Act

authorizes any person, police officer or inspector to file a complaint of the

commission of an offence in any court of competent jurisdiction.

The great merit of this Act is that it brings about uniformity in the

definition of a child, minimum age for employment, and conditions of work,

by repealing the Employment of Children Act, 1938, and making necessary

amendments in the other Acts. Yet, it has a demerit similar to the Act of

1938, and the demerit is that it covers only the children in the organized

sector, and does not cover the 90 per cent child labourers in the

unorganized urban and rural sectors and family units.

I1 Evaluation

In spite of a plethora of Acts seeking to prohibit the employment of

children in economic activities, employment of children goes on without

any restraint. The law prohibiting the employment of children in

industries, as the Labour Investigation Committee observed in 1946

itself, is disregarded openly and the children are employed in large

numbers in various industries (Mehrotra, 1981). The World Bank (1995)

remarks that India has sound child labour laws, yet millions of

children are working, often in hazardous industries (cited by Singh,

2003). Taking cognizance of the persistence of child labour

notwithstanding the stringent laws, the Supreme Court (1996), while dealing

with a writ petition (civil) of M.C. Metha (465/1986) against the State of

Tamil Nadu and others, which sought to invoke the Court's power under

Article 32* of the Constitution in the matter of the employment of children in

the match factories of Sivakasi in gross violation of Article 24, emphasized

the urgency of strict imposition of a ban on child labour. The Court called for

withdrawal of children from working in hazardous industries and ensuring

/ their education in appropriate institutions.

Magnitude

Yet, the legal machinery has failed to arrest the child labour. Child

labour persists in a greater magnitude, showing up that it is more powerful

than the legislation. At any point of time it stands at the level of not less

than 10 million.

There is no definite estimate regarding child labour population. There

are several estimates for different periods of time. But they all widely vary.

It can be understood from the following table.

* The Article 32 empowers the Supreme court "to issue directions or orders or Writs,including Writs in the nature of Habeas corpus, Mandamus, Prohibition, QuoWarranto and certiorari, whichever may be appropriate for the enforcement of any ofthe rights", conferred under the head "Fundamental Rights" of the constitution.

Table 1.1

Magnitude of Child Labour as Estimated by Different Organisations

Year

19611971

1972-731975

19771978

197919791979

1981198119831983

1983

1983

1985

1985

19861987-8819911991

1993-94

1994

19951995199619961996199619971998

19992000

200020002001

Magnitude of ChildLabour (in million)

14.4710.74

16.3315.10

16.62

16.25

16.60

17.36

18.0013.6016.00

17.3617.60

34.76

44.00

100.00

111.00

16.70

17.0211.2823.02

13.50

20.00

25.0074.8023.1735.00

140.00144.0073.00

100.0014.4025.00

44.00100.00

12.70

Organisation

Census'

Census'National Sample Survey2

International Labour Organisatior?

National Sample Survey Organisation

National Sample Survey Organisatiori

National Sample Survey Oganisation5

National Planning Commission Child Labour Board

Census 2

National Sample Survey OrganisatiorNational Planning Commission Union Labour MinistrJ

National Sample Survey Organisation8

Operations Research Group2

Chamber of Commerce and Industry6Balai Data Bank, Manila

Expert Committee on Population Projectio

National Sample SurveyOrganisation2Census'D.P. Choudhri2National Sample Survey Organisatior

Union Labour Ministry2

Commission on Labour Standards1°Campaign Against Child Labour2International Labour Organisation5UNICEF Rashmi Sehga12International Labour Organisation?

UNICEF2Centre for Child Rights and Development'1

International Labour Organation2National Planning Commission2Operations Research Group"

Chamber of Commerce and Industry13

Census"

Sources : 1. Report of the Committee on Child Labour (1981), 2. M. Koteswara Rao(2000), 3.Mukta Mittal (1994), 4. Assefa Bequele and Jo Boyden (1988),5. Helen R. Sekar (1997), 6. Y.S. Reddy (1999), 7. K.P. Massun (1998), 8. AmarNath Singh (1990), 9. K. Suman Chandra (1997), 10. The Hindu, June 14, 1995,11. The Hindu, June 5, 2000, 12. P. Anandhacajakumar (1998), 13. TheHindu, August 15, 2000, 14. The Hindu, December 29, 2005.

In the year 2001, the census data report estimated the child labour

population at 12.7 million. But "the NGOs speak of numbers three to four

times as high" (The Hindu, December 29, 2005). That is, according to

NGOs, the child labour population in India stood at about 38 million to 51

million in 2001.

For the year 2000, the National Planning Commission projected 25

million as the child labour population (Kumar, 1998). While the National

Planning Commission's projection put the figure of child labour population at

25 million for the year 2000, the census data report projected 12.7 million

for the year 2001, about half of the National Planning Commission's

estimated figure. Compared to NGOs' estimate, the National Planning

Commission's estimate itself is lower. Yet it may be considered for the

present year, in view of the authoritativeness of the source. Though made

for the year 2000, it holds good for the present year (2006). Considering the

track record of the child labour population in regard to its tendency to grow

at the rate of 4 per cent per annum (as reported by the Commission on

Labour Standards), the child labour population may be taken to be not less

than 25 million today.

The UNICEF in its report on The State of the World's Children,

2006, released on December 14, 2005, states that close to 80 million

children work as labourers in the world (The Hindu. December 15, 2005). It

also states in another context that India harbours one-third of the world

population of child labour (Kaur, 1993; Chandra, 1997; Reddy, 1999) and

the estimated 25 million size comes close to the one-third size.

M. Koteswara Rao (2000) states that about 40 per cent of total

population in India are children, of which about 8.6 per cent are engaged in

child labour. The Rashtriya Sahara magazine dated May 1994 says that

every 18th child in the country is employed (cited by Mishra, 2000)*.

The juvenile work force is distributed in both rural and urban areas. It

is found in all sectors of employment: primary, secondary, and tertiary. The

primary sector (agriculture) accounts for over 83 per cent of working

children. The remainder are in secondary (industry) and tertiary (services)

sectors.

* But an ILO -sponsored study states that every fourth child in the country isemployed (cited by Gupta and Nagaich,2000).