CHILD LABOUR- TRACING THE LEGISLATIVE HISTORY BETWEEN REGULATION

AND PROHIBITION

Miss Sayoni Choudhuri*

Abstract

The problem of child labour is an unpleasant reality of Indian society. More tragic is the effort to
redress the problem. Morally every individual know that children should not work, particularly
when it tampers their psychological and physiological development. Political authorities have
considered the issue of child labour with apathy. It is considered as a natural corollary of
poverty. Economic development has been lopsided. As a result it failed to uniformly ensure
poverty alleviation. Thus child labour practices continue. Another reason for the continuity of
child labour is the lack of political will to prevent it through legal initiative. There is absence of
regular agencies to oversee extend and types of exploitation child labour undergo.

In this paper I would discuss the legislative history of prevention and prohibition of child labour
in India. The discussion will trace from pre-independence legislation to till date what initiative
governments have taken. Secondly the lack of political will among elected representatives to
address the issue have often been substituted willing by Judiciary. Finally, I will try to predict the
possible outcome of the Narendra Modi’s governments proposed legislation on child labour.

Key words: Child labour, law, judiciary, Government.

Child labour is an accepted social practice in India. The colonial administration had asserted the
practices related to it. The colonial administration brought two fold change to it. It displaced the
child as an individual labourer in the capitalist production process. Thereby displacing him/her
from the feudal agrarian collective labour system, where the children use to work with other
members of his or her family. Secondly, the colonial system also made the first attempt to
regulate child labour. It is to be noted here that there was no attempt to prohibit child labour,
colonial masters had no moral obligation or interest to redress the poverty which induces this
kind of labour. Thus the very first attempt to regulate child labour was in 1881 in form of the
Indian Factories Act. The law set minimum age limit at 7 years for employment with maximum
9 hours of work per day. But the law was only with regard to organization with 100 workers. The
legislative net allowed smaller organizations to swim through its big hole and practice
indiscriminate child exploitation.

Till 1947 thirteen laws were enacted involving child labour in factories, mines, plantation , ports
etc. with specific allotment of age of employment and hours of work. For example the Indian
Factory Act 1926 imposed penalties on parents who permitted their children to work in two
different factories. In the Tea District Emigrant Labour Act 1932, the issue of migration was also

*Miss Sayoni Choudhuri, Assistant Professor, Department Of Political Science, Loreto College, Kolkata
[email protected]
addressed. Though, the plantation industry was not the only one involving the problems of
migration. The landmark legislation of the colonial period was the Children (Pledging and
Labour) Act 1933. By this legislation bonded labour was prohibited below 15 years. It can be
deduced that after 15 years of age it was legally an acceptable practice till adulthood. Thus a
single piece of legislation was progressive and regressive at the same time. More over the
problem of child servitude is older than the Indian State which has inherited this problem along
with other social malice.

The colonial legislations also highlighted the progressive trend of increasing the employable age
of children from 7 years – 9 hours/ day in the First Factory Act of 1881 to 15 years-6 hours/ day
in Fourth Factory Act of 1922. The working conditions in the factories was also regulated,
particularly the mining sector where hours of work above and underground was specified. The
act also focused upon certain prohibitive conditions in Minning industry like the hours of work
above and underground was specified. Secondly, prohibiting any overtime or all night work for
children. Such colonial legislation displayed some humane consideration but comprehensive
development like education, health and nutrition were not part of its policy decision.

The obvious burden of comprehensive child development became the concern of the newly
independent state of India. The first post independence act was the Minimum Wage Act (1948)
which starts with defining child labour as labourer below the age of 14 years. The act also
classified the minimum wage for adults, adolescents and children. The act accepted child labour
within the legal paradigm of post colonial administrative structure. These act was followed by
the Plantation Labour Act , 1951 and the Mines Act, 1952 both the legislations specified the age
of the ‘child’ as below fifteenth year. Both the legislation makes exception to employable on the
basis of fitness certificate. The possibility that after working in these sectors the child may deem
to be unfit in future was never considered by the legislators. The Merchant Shipping Act, 1958
prohibited employment below the age of 14. It had additional prohibition upon individuals below
18 years of age who cannot work as trimmers and stokers. Motor Transport Workers Act, 1961
specifies ‘child’ as below 15 years like the previous acts. The Apprentices Act, 1961 as a
national law prohibits labour below 14 years. Thus there was absolute lack of consistency on part
of deciding what constitute child labour. It added to the overall confusion in regulating child
labour recruitment sector wise. The Beedi and Cigar Workers (Conditions and Employment Act,
1966) prohibited employment below 14 years of age. It also brought time regulation on young
employees, prohibiting them from working overnight. The Shops and Establishment Acts are
state laws which restrict employment age of children between 12 – 14 years in different states.

After 39 years of independence that the first proper legislation on child labour prohibition was
formulated by the Indian Parliament in form of Child Labour (Prohibition & Regulation) Act
1986. This delayed legislation clearly displayed the absence of political will on the part of the
governments as well as the wider political groups towards the problems and reasons of child
labour. The lack of political will can be attributed to the fact that the issue of child labour is not

*Miss Sayoni Choudhuri, Assistant Professor, Department Of Political Science, Loreto College, Kolkata
[email protected]
part of electoral politics. Children are not voters. Parents of child labourers are political
disorganized and displaced to initiate any collective political action. Poverty of such families
forces them to make their children work even against their best intention for child development.
Thus the problem requires not just a strong preventive legal framework along with it sincere
intention of implementing and supervising this law.

The Indian State’s was created with pediatric essence which can be noted in the constitutional
provisions. The constitution guaranteed children all fundamental rights as given to the citizens
of the country. The constitutional provision as stated under Article 14, 15, 16, 23 and 24 are
equally applicable upon children. Under Art 14 of the Indian constitution right to equality is
guaranteed to all irrespective of any distinction on the basis of gender, caste and religion. Article
15 empowers the State to make special laws for giving favourable treatment to the children.
Article 24 prohibits hazardous employment of children below the age of 14 years. Another set of
constitutional provisions like, Article 39(e) prohibits labour abuse of tender age children. It also
prohibits a vocation and unsuitable labour for age and strength but also economic necessity.
Article 39(f) 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. It emphasizes upon dignity of
childhood. Article 45 provides for free and compulsory education for children The State shall
endeavour to provide, within a period of ten years from the commencement of this Constitution,
for free and compulsory education for all children until they complete the age of fourteen years.
Article 51 foster respect for international law and treaty obligations in the dealings of organised
peoples with one another; and encourage settlement of international disputes by arbitration.

Thus under Article 51 of the Indian Constitution the state has to abide by the international
conventions. In this regard the Convention on Child Rights 1989 requires special mention. The
Article 32 of the Conventions provides for

1. States Parties recognize the right of the child to be protected from economic exploitation and
from performing any work that is likely to be hazardous or to interfere with the child's education,
or to be harmful to the child's health or physical, mental, spiritual, moral or social development.

2. States Parties shall take legislative, administrative, social and educational measures to ensure
the implementation of the present article. To this end, and having regard to the relevant
provisions of other international instruments, States Parties shall in particular:

(a) Provide for a minimum age or minimum ages for admission to employment;

(b) Provide for appropriate regulation of the hours and conditions of employment;

(c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the
present article.

*Miss Sayoni Choudhuri, Assistant Professor, Department Of Political Science, Loreto College, Kolkata
[email protected]
The constitution had set the responsibility of child development upon the successive political
regimes. The constitutional provisions of equality are addressed towards social and gender
equality. Children can be unequally treated against adults was never considered by founding
fathers. But it is a sad story that democratic governments have been working at snail pace to
address issues of child labour and development. Government of India in 1974 created the
National Policy for Children and a National Children Board. The Board accepted the 1959 UN
Declaration of Rights of Children. In 1975 India launched the community level Integrated Child
Development Services Programme. It is only after these policies we see the Child Labour
Prohibition Act being formulated in 1986. In 2004 UPA I Common Minimum Programme had
declared the need to protect children particularly from labour exploitation. Accordingly the
Commission for the Protection of Child Rights Act 2005 was formulated. It was followed by the
National and State Commission for protection of Child rights and children courts came into
existence. The efficiency of such commissions remains questionable. The right to education
(RTE) comes to existence only in 2009.

In 2012, the Child Labour (Prohibition and Regulation) Amendment bill was introduced in the
Rajya Sabha. The bill seeks to amend the current Act and put a ban on employment of children
below 14 years of age in any occupation. This is an essential change because the Right of
Children to Free and Compulsory Education Act requires every child between 6 and 14 years to
be compulsorily educated. The bill identifies a new category of individuals as ‘adolescents’. This
age group consists of individuals between 14 and 18 years of age. The bill states that adolescents
cannot be employed in any hazardous occupation. Any lapse in this provision will invite penalty
in form of imprisonment between 6 months to 2 years and fine of amount 20000 and 50000 or
both. The bill has been pending since 2012. The change in Central government has also brought
some amendment to this bill, which I will discuss in the last section of the paper. This pending
bill clearly illustrates the indifference of political authority in addressing the issue with urgency.

II

The Indian Judiciary has played a responsible role in dealing with the issue of child labour and
development. It has attempted to arrest the spread of the practice. It has acted ethically than its
legislative counterpart. In the following discussion I have attempted to discuss some of the
significant cases were judiciary has strongly prohibited child labour practices.

Some of the significant judgment with regard to child labour and rehabilitation are : In the 1983
Salal Hydro Project vs. Jammu and Kashmir case Supreme Court reiterated the earlier position
held on hazardour project. In the same year Bandhua Mukti Morcha vs. Union of India in a PIL
appealed against the employment of children by various carpet weavers in Varanasi and
Mirjapur. Supreme Court ruled that the practice was the violation of Art 24 of the Constitution. It
was ruled that the State has the responsibility to implement measures like compulsory education,
periodic health check up and provide nutritious food. In the Sheela Barsee vs. Union of India
(1986) the court ruled that the child is a national asset thus the full development should be
assured.

In the Laxmi Kanath Pandey vs. Union of India (1991) the Court abolished the practice of
bonded domestic service and slavery of poor children which has been in practice for a long
*Miss Sayoni Choudhuri, Assistant Professor, Department Of Political Science, Loreto College, Kolkata
[email protected]
period of time. In Anand Vardhan vs. University of Delhi (1996) the Supreme Court upheld that
the abolition of child labour persecutes of compulsory education. In the Murali Krishna Public
School case (1986) right to education was recognized as a fundamental right to the dalists by the
apex court. Thus child labour contradicts fundamental right and doesn’t ensure need for equality
was addressed much before the 2009 RTE.

In the M.C.Mehta vs. State of Tamil Nadu (1996) banned child labour. The court upheld the
Bonded Labour System (Abolition) Act 1976 to rule that children cannot be employed in the
match factory at Shivakasi. It was also ruled that such form of employment was violation of
Article 39, 41and 42. The Judgment ordered the State to set up a Child Labour Rehabilitation
Welfare Fund. The offending employees will have to deposit Rs 20,000 as a compensation to the
Child Fund. The judgment pronounces the compensation of providing employment to one
member of the family of child who is withdrawn from work and if that is not possible than Rs
5000/- to be paid in the fund by State government. It provides for the government to conduct a
survey in 6 months in industries like match factory, stone polishing, glass industries, brassware,
diamond polishing to evaluate the condition. Non compliance of the order will involve penal
action. Further instructing the agencies to check that non-hazardous job for child labourers
should not exceed 4- 6 hours. It simultaneously ordered the employers to bear the cost of
education of child labourers.

The following table contains the child labour figures over 5 years. The cumulative figures are
given by Ministry of Labour in compliance of the direction Supreme Court. The report is
prepared on the basis of the information received from state and union territories governments.
This information in itself illustrative of the reported child labour practices in the country. While
unreported is feared to be even more by many voluntary organizations.

Enforcement Figures on Child Labour (Prohibition & Regulation) Act 1986 (last five years)*

Year Inspections Violations Prosecutions Convictions

2009 328077 8709 5633 1489
2010 255176 11182 4570 1536
2011 150771 14411 6011 976
2012 164453 12019 5018 1144
2013 174994 8859 3486 1041
Total 1073471 55180 24718 6186

*Source: Ministry of Labour & Employment, Government of India

Thus the judiciary in India has addressed all the prominent form of child labour exploitation. The
judgments have not just tried to end exploitation along with it has served supplementary orders
to ensure the development of the children. It has reflected upon the future of the child labourers.
The judicial orders have always highlighted the responsibility of the State towards its minor
citizen.

*Miss Sayoni Choudhuri, Assistant Professor, Department Of Political Science, Loreto College, Kolkata
[email protected]
In a landmark judgment the Supreme Court ordered the Central Government about the working
condition of children in circuses. The Bachpan Bachao Andolan vs. Union of India case was
filed under Art 32 of the constitution involving serious violation as well as abuse of children
working in the circuses. The sedition also involved concern over issues like trafficking, violation
of fundamental rights, along with violation of international treaties and conventions related to
Child rights and Human rights. The Supreme Court ordered the government to issue proper
notification for prohibiting children from working in circuses. Along with it implementing the
fundamental rights as provided under Art 21A of the constitution. It also provided for
rehabilitation of the children or uniting the children with their parents.

III

I would like to end the paper with some reflection on the proposed amendment to the 2012 Child
labour Act. On May 13, 2015 the Union Cabinet cleared new amendments to the Child Labour
(Prohibition and Regulation) Amendment Bill, 2012. Under the suggested changes to the bill
children will be allowed to work in non hazardous family enterprises, TV serials, films,
advertisements and sporting activities after school hours or during vacations. So a child cannot
work in circus but can work in the audio-visual entertainment industry provided it doesnot
hamper his or her education. This move has brought new concern among social activists and
academicians. There are areas of concern like the question of surveillance, for example it is
difficult to understand whether a child is working within family or pseudo family enterprise. The
idea of family enterprises will result in more trafficking and exploitation. Secondly, how many
days a child attends school is another area of concern. In the name of non hazardous employment
the recruitment of child labourers as domestic workers has only increased. Moreover working at
home will still deprive child labourers from their right to leisure.

Inspite of discussing the legal initiative behind child labour prohibition it can be concluded that
the practice continues. As per Census report of 2011 child labour amount to 4.3 million. The
problem is also critical as many child labourers are confined within the four walls as domestic
worker which is rarely accounted. Often these domestic workers are also bonded labourers. The
question that is left unanswered is how does such a force of child labour go unnoticed from the
vision of law? Is legislation sufficient to end this ordeal? Or will it continue like many other
inhuman social practices of Indian society?

REFERENCES

1. Sukla, Narendra. Child Labour in India: Nature and Issues, New Delhi: Sarup Book
Publishers Pvt. Ltd., 2012.

2. Bourdellon, Michael .F.C, Levison, Deborah, Meyers, William.E and White, Ben.
Rights and Wrongs of Children Work, Rutger’s University Press, 2010: Project Muse
edition.

3. Sharma, Usha. Child Labour in India, New Delhi: Mittal Publication, 2006.

*Miss Sayoni Choudhuri, Assistant Professor, Department Of Political Science, Loreto College, Kolkata
[email protected]
 4. Kundu, Amitabh. India Social Development Report, New Delhi: Oxford University
Press, 2006.

5. Chakrabarti, Nirmal Kanti, Nag, Manabendra Kumar and Chatterjee, S.S. Law and
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6. De, Shibnath edited. Child Protection: Socio-Legal Measures in India, Kolkata : Lunar
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7. Patil, V.T. Human Rights: Third Millennium Vision, Kolkata: Author Press, 2004.

8. Mishra, Dharmendra Kumar, ‘Nimble Fingers on Beedis:Problems of Girl Child Labour

in Sambalpur and Jharsuguda’, Indian Journal of Gender Studies, Vol 21, No.1,
February 2014, pages 135-144.
9. Saravanan, Velayutham.‘Women's Employment And Reduction Of Child Labour:
Beedi Workers In Rural Tamil Nadu’, Economic And Political Weekly, Vol. 37, No. 52
(Dec. 28, 2002 - Jan. 3, 2003), Pp. 5205-5214.

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*Miss Sayoni Choudhuri, Assistant Professor, Department Of Political Science, Loreto College, Kolkata
[email protected]