A law against children
The amended act legalises the bulk of child labour while claiming to do the opposite.
written by Harsh Mander | July 29, 2016
Of the many injustices that have scarred India, the most unconscionable are those of unequal childhoods. The law in the country has permitted children to be confined to work instead of being in schools and at carefree play. India’s child labour law, until the recent amendments passed by Parliament, barred child work until 14 years only in officially designated hazardous employment. There was no bar on the employment of children between 14 and 18 years.
On the face of it, two major amendments to India’s child labour law seem welcome. These amendments prohibit all work, hazardous or otherwise, for children under 14, who now also enjoy the constitutional right to free and compulsory education. And for adolescents between 14 and 18 years, whose labour was entirely lawful until now, the law prohibits their employment in work scheduled as hazardous.
Yet on closer scrutiny, we discover the same pattern as many other pronouncements of this government vis a vis the poor: The reality of what is being offered is the reverse of what appears on paper. The ban on hazardous adolescent work is accompanied by changes in the schedule of hazardous work in the statute, bringing these down from 83 prohibited activities to only three. Apart from mining and explosives, the law only prohibits processes deemed hazardous under the Factories Act 1948. In other words, the amended law prohibits only that child work which is considered hazardous for adult workers, without recognising the specific vulnerabilities of children.
More damaging is the caveat in the amended law that permits even children under 14 years to now work in non-hazardous “family enterprises” after school hours and during vacations. The family is defined to include not just the child’s parents and siblings, but also siblings of the child’s parents. And a family enterprise includes any work, profession or business in which any family member works along with other persons.
In effect, this proviso accomplishes the very opposite of what it claims to do. Instead of ending child labour, it actually makes lawful once again a large part of child work that was earlier unlawful. It is estimated that around 80 per cent of child labour is in work with family members. This is in farms, forests, home-based work such as bidi rolling, carpet weaving, making of bangles and handicrafts, home-based assembly tasks, domestic work, eateries, roadside garages, and street vending. Child rights activists had fought long and hard to compel governments to include many of these occupations in the statutory list of hazardous occupations. But by the double whammy of legalising child participation in non-hazardous “family enterprise” work and drastically trimming the list of hazardous occupations, in effect the government has again legalised the bulk of child work.Reopening the flood gates for child labour by these amendments is part of a larger package of weakening labour protections for enhancing labour market flexibility to facilitate higher corporate investments. The quarter century of economic reforms has witnessed the steady dismantling of factory floor manufacture by organised adult workers into a preference for unorganised migrant, adolescent and child workers and contractual and home-based production systems.
Home-based work absolves the owners and managers of global supply chains from any legal obligations of fair wages, healthy work conditions and social protection to the actual end-line workers who labour in isolated home-based units. Economist Archana Prasad points to the surge of home based work from 23.3 million (1999-2000) to 37.4 million workers in 2011-2012. Of this, 16 million were women home-based workers. Nearly 32 per cent of total women workers outside agriculture are home-based workers. Around 73 per cent of these women engage in home-based manufacture, in sectors such as apparel, tobacco products and textiles. Once work is undertaken within the four walls of a home, children routinely (but up to now unlawfully) assist their mothers for long hours to complete and maximise their “piece-work” orders. What these amendments accomplish is to render this child labour lawful.
The argument that has long held sway is that child labour, however unfortunate, is inevitable as long as households remained poor. Only after parents escape poverty will their children be able to enter school. What these claims ignore is that the reverse is far more true. That child labour is indeed a major cause of persisting poverty. That if a child is trapped in labour instead of being able to attend fully to her schooling, she will never be able to escape the poverty of her parents. The child of a sanitation worker, rag-picker, domestic worker or casual labourer is likely to be trapped in the professions of her parents unless she is able to access quality education. And also, for every child in work is an adult denied the same work, an adult who could have ensured that her children could be in school. We may argue that working with one’s hands is integral to a full education. But in that case, the opportunities and the obligation to work must surely lie with children of privilege as much as it does with children of disadvantage?
Children enrolled in schools but rising from disadvantage face many barriers. They may be poorly nourished; be first-generation learners; have no place for study in their homes; and be unable to afford tutors. It is they who would be further disadvantaged by this amendment.
Those who defend this amendment applaud the opportunity it would provide for children to learn the trades of their parents. This argument is a thinly disguised defence of caste, because it is only the caste system that envisages the “natural” transition of children into the professions of their parents. Why should the child of a potter learn to be a potter, and not a poet; the child of a sanitation worker not a doctor; and the child of a leather tanner not a philosopher? These amendments are one more spur to India’s ancient tradition of unequal childhoods.
Mander is a human rights worker and writer
Everything you need to know about Child Labour Amendment BillWhat is the bill all about?
In 1986, Parliament enacted a law to protect children from forced labour and exploitation, putting a blanket ban on employing children under the age of 18. It triggered several protests and even trade unions cited practical difficulties, especially for poor families. Later, in November 2012, the UPA government proposed amendments to the law to allow partial relaxation. The current bill is a modified version of the UPA’s proposals.
What does the new bill say?
The Child Labour (Prohibition and Regulation) Amendment Bill prohibits employment of children below 14 years of age in all occupations. But it allows adolescents (those between 14 and 18 years of age) to work in non-hazardous occupations and processes. They can work in family-run establishments like a grocery store but can’t work in a chemical factory.
How does the new law take care of education for children?
The new law, while giving some relaxation for employment, makes it mandatory that the child can help one’s family and a family enterprise only after school hours or during vacations. During school days, no family can employ its children for job.
What if a family or an employer is found violating the law?
In case of violation, only the employer will be held responsible. He may pay up to Rs 50,000 as penalty and face imprisonment between six months and two years. For subsequent offence, the penalty will be imprisonment between one and three years.
What happens when a child is rescued from forced labour?
It will be the responsibility of the state government to rehabilitate the child. The government will give Rs 15,000 and add the fine from the employer to help the child’s rehabilitation.