Child Rights and Child Protection in India

This article was originally written as an academic paper and is republished here as a knowledge-sharing resource. It has been lightly formatted; statutory references reflect the law as it stood at the time of writing.

A Socio-Legal Prospective On

Issues & Concerns Relating To Child Labour In India

“Child labour and poverty are inevitably bound together and if you continue to use the labour of children as the treatment for the social disease of poverty, you will have both poverty and child labour to the end of time.”

-Grace Abbott

Abstract

We are a modern nation and are proud to be citizens of the largest political democracy in the world today, having more children under the age of fourteen than the entire population of the USA. Yet, we still witness the growth of inequalities, discrimination unemployment, poor standards of living, illiteracy and poverty which are responsible for compelling the children in various kinds of semi-skilled/un-skilled badly paid labour work. Even after the implementation of International Program on Elimination of Child Labour (IPEC) guided by ILO and presence of numerous Constitutional & International legal framework we are still not capable enough to eradicate this problem.

This Article provides a general overview of various contributing factors & the impact of these factors on child labour in India. An attempt is also made to highlight the correlation of child labour with mothers’ participation. Analysis of prevailing national and international legal framework relating to protection of children from exploitation along with various welfare programs for children are also considered. Finally, the conclusion outlines the suggestions that may help in eliminating the shortcomings of the existing framework.

KEYWORDS: Child Labour, Factors, India, National & International Laws, Suggestion.

Full Paper

Introduction

In Sheela Barse v. Union of India the Supreme Court observed that “A child is a national asset, it is the duty of the State to look after the child with a view to ensure full development of its personality”. India is a country with rich heritage & culture, and the future of this country rests on the shoulders of these children’s but this future is at risk due to numerous reasons like poverty, unemployment, illiteracy but among all these the most important and major obstacle is child labour.

Out of its total population of more than 1 billion, 350 to 400 million people are living below the poverty line and nearly 75% of the poor people are in rural areas, most of them are daily wagers, landless labourers and self-employed house holders and over 61 % of parents of child labourers are illiterate. Poverty dumps a crowd of problems onto a child. Not only do these problems cause immediate suffering, but they also conspire to keep the child poor throughout his/her life. In order to survive, a poor child in India will probably be forced to sacrifice education and training; without these skills the child will, as an adult, remain at the bottom of the economic heap.

Child Labour

“When the business of wage earning or of participation in self or family support conflicts directly or indirectly with the business of growth and education, the result is child labour.” “Child Labour’ can be conceived to include children under the age of 15 years, in work or employment with the aim of earning a livelihood for themselves or for their families.

2.1 A Brief History Lesson on Child Labour

The prevalence of child labour has been more or less in all periods of time though varied in its nature and dimension, depending on the existing socio-economic structure of society. Earlier slaves of tender ages were owned for doing low and ignoble work. Children of slaves were born as slaves, lived as slaves and died as slaves unless the master was pleased to monument them. Ancient Indian history is silent on the practice of child labour, and did little to abolish this inhuman practice of child slaves. Child slave could be purchased or sold like commodities. Kautilya realized that slave children are not different from Arya children and they are not physically fit, to carry out the ignoble duties of slave and also allowing sale & purchase of slave children is equivalent to inhumanity. Inspired by such feelings, he prohibited the purchase or sale of slave children of less than 8 years of age.

While during the medieval period, Ain-I-Akbari, Bernier Travel’s reveal that children were frequently purchased and sold like chattels. To our surprise, children were also sold by parent for their economic necessity. However, during the reign of King Jahangir. He condemned the practice of child labour and issued strict directions to discourage child labour even in cases of exceptional circumstances.

The problem of child labour underwent a dynamic change in British India. Destroyed by capitalism farmer become daily wage earning labourers and extreme poverty lead to the introduction of children in labour market along with the introduction of large scale production in mid-19th century children were employed in cotton and jute mills and coal mines.

Causes

The problem of child labour in India is not because of any single isolated factor. It is a multidimensional problem which involves numerous reasons contributing to this problem in a variety of ways. Causes of child labour can be divided into 2 groups: Economic & Social Factor.

2.2.1 Economic Factor

Economic reasons are responsible for the prevalence and perpetuation of child labour, because child labour is essentially a problem of poor and destitute families, who have no option but to send the child for work in order to keep the wolf away from the door.

The economic compulsion may be characterized as under:-

Poverty

Poverty is both causative and consequential to many problems in society. Half of Indian population lives below the poverty line, children of these families have the option of either to die of starvation or to seek employment. The M.S. Gurupadsawmy Committee, 1979 pointed out poverty is the strongest factor for the prevalence and perpetuation of child labour. In People for Union for Democratic Rights v. Union of India (popularly known as Asiad Worker’s Case) the Apex Court observed that “We are aware of that the problem of child labour is a difficult problem and it is purely on account of economic reasons that parents of often want their children to be employed in order to be able to make two ends meals. The possibility of augmenting their meagre earning through employment of children is very often the reason why parents do not send their children to school, and there are large drops out from the schools. This is an economic problem and it cannot be solved merely by legislation. So long as there is poverty and destitution in this country it will be difficult to eradicate child labour.”

Inadequate Income of Parents

It compels them to send their children to do some work in return of some wage that will supplement in obtaining the essentials needs of the family.

Unemployment

The state of unemployment turns the weak into a cripple. Child labour is high due to the unemployment of adult members of the family. Unemployment forces the adult to send their children for work and partial employment of the adult also compels the children to go for labour.

Children as Cheap Labour

Employers mainly prefer children’s as labours due to the fact that there is a cheap and safe lay off without any liability.

Migration from Rural to Urban Area

Large numbers of rural migrants to big cities and employment of large proportion of their children is another proof of economic helplessness.

Indebtedness

Indebtedness of poverty stricken family compels the children to work as labour in order to repay the family debt.

2 Social Factor

Enlarged Families

Enlarged families with low income cannot afford to nourish high ideals and notions. As a result they cannot provide a protected childhood to their children, thus leading them to become a child labour.

Lack Of Education

Absence of education in family is also a major cause for child labour. Inadequate school facilities further discourages poor parents towards educating the child. They think that working child brings money into the home to take care of certain basic needs whereas education does not produce any results.

Parents Attitude & Prospective

Producing classes leant the necessary skill in the family from one generation to another. Formal education had little relevance to them. Some parents still pursue this tradition and do not believe in the socio-economic value formal education, their children are inducted in the work-culture from the very beginning. Another belief which has been handed down from generations among the poor strata of the society is that “more hands in the family mean more income”. This tendency is not only responsible for the population explosion but also for the perpetuation and child labour. Less educated parents tend to place lower value on their children’s education and therefore, put them to work at an early age. Thus the nature of parental attitude and perceptions tend to influence the employment of children to a great extent.

Absence of Scheme for Family Allowances.

In India, there is a conspicuous absence of schemes for family allowances. It helps people to retain adequate standard of living and thus they are not forced to send their children to the labour market.

Legal Framework

3.1 International Prospective

According to the definition of United Nation Convention on the Rights of the Child (UNCRC) every human being below the age of eighteen years is known as ‘child’. In Geneva Conference (1924), the need for special safeguard for this children was widely accepted. It was also proclaimed in this declaration that children’s by the reason of their physical and mental immaturity need special safeguard and appropriate legal protection. The Declaration of the Child Rights was adopted by the General Assembly on 20th Nov, 1959.

Thirty years later, the world leaders recognized that children should have human rights of exclusive manner and for that they need a Charter. The Convention on the Rights of the Child (UNCRC, 1989) is the first legally binding international instrument to incorporate the full range of human rights—civil, cultural, economic, political and social rights within child rights. It spells out those basic human rights that every child should have wherever he may live: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and social life.

3.2 India’s Stand on Child Rights

Law makers have always tried to protect the interests of children at the places of work. The Factories Act of 1881 and 1891, the Mines Act of 1901, the Factories Act 1911 and the Factories (Amendment) Act of 1926, the Indian Ports (Amendment) Act of 1931, the Children Pledging of Labour Act of 1933, the Mines (Amendment) Act of 1935, the Employment of Children Act 1938 etc. were some of the legislative provisions regulating the age, hours of work, mandatory holidays, rest and leisure, safety and welfare of the child labour. In the post -independence era, the interests of children were protected by the Factories Act 1948, the Employment of Children (Amendment) Act 1949, the Plantation Labour Act 1951, the Indian Mines Act 1952, the Factories (Amendment) Act 1954, the Merchant Shipping Act 1958, the Motor Transport Workers Act 1961, Apprenticeship Act 1961, the Beedi and Cigar Workers (Condition of Employment) Act 1966 and the Employment of Children (Amendment) Act 1978.

The Directive Principles of State Policy (DPSP) in Indian Constitution (Article 39) empowers the state to direct policies so that the tender age of children are not abused and childhood are protected against exploitation and moral abandonment. As a follow up of this constitutional commitment and being a party to the UN Declaration on the Rights of the Child, 1959, India adopted a National Policy on Children (NPC) in 1974. This policy reaffirmed the constitutional provisions and authorized the State to provide adequate service to children through the period of their growth in order to ensure their full physical, mental and social development. Consequently, Child Labour (Prohibition & Regulation) Act, 1986 came into force debarring the children below 14 years of age into any work or occupations.

After ratification of the UNCRC in 1992, India changed its law on juvenile justice [Juvenile & Justice (Care & Protection) Act, 2000] to ensure that every person below the age of 18 years of age, who is in need of care of protection, is entitled to receive it from the state. The National Commission for Protection of Child Rights (NCRC) was set up in March 2007 under the Commission for Protection of Child Rights Act, 2005.

The Constitution of India, as of now, guarantees all the children certain rights which include:

Art. 15(3) which provides for special protective discrimination in favour of woman and child relieving them from the moribund of formal equality. It states that "nothing in this article shall prevent the State from making any special provision for women and children".

Right to free and compulsory elementary education for all children between the age group 6-14 years - (Article 21A).

Right to be protected from any hazardous employment till the age of 14 years - (Article 24).

Right to be protected from being abused and forced by economic necessity to enter occupation unsuited to their age or strength - [Article 39(e)].

Right to equal opportunities and facilities to develop in a healthy manner and in condition of freedom and dignity and guaranteed protection of childhood and youth against exploitation and against moral and material abandonment - [Article 39(f)].

Art. 39(o) provides that the children should be given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity; and that childhood and youth are protected against exploitation and against moral and material abandonment.

Art- 46 directs State to promote the educational and economic interests of the women and weaker sections of the people and that it shall protect them from social injustice and all forms of exploitation.

Art- 45 makes provision for free and compulsory education for children, which is now well settled as a fundamental right to the children up to the age of 14 years.

In Bachapan Bachao Andolan v. U.O.I & Ors., SC held that, “No child shall be deprived of his fundamental rights guaranteed under Constitution of India. Article 23, 39, 14 and 21 of the Constitution of India guarantee every child to be free from exploitation of any form. Concerns of child and the paradigm of child rights had been addressed suitably in various international conventions like the UN Convention on the Rights of the Child (UNCRC), 1989. India has ratified the UN Convention on the Rights of the Child in 1992, a convention prescribing standards to be adhered by all state parties in securing the best interest of the child. Integrated Child Protection Scheme seeks to create database and knowledge base for child protection services; it needs to strengthen child protection at family and community level”.

However, despite having so many legal instruments the children in India are still not secured. Several indicators show how the child rights are being violated in different parts of our country whose plausible social and economic consequences would be more dangerous. Child abuse is another dangerous part of erosion which silently kills the potentials and development spurt of many children. We still live in a tabooed society in our country, where no-proper sex education is provided to the children. Children get molested and abused but due to lack of sufficient awareness, they fail to protest and keep on becoming victim of exploitation for long.

Conclusion

Child labour is a curse on the society whether it is developing or developed country. Though in ancient India child labour was going on but the scenario of child labour in present trend is more pathetic one. We may forget that they are the future of a nation. Indulging of child in labour section is a shame for us. But it is a fact that children’s sacrifice their childhood for earning food for their family as well as for themselves. Only making laws and enactment of rules and regulation is not sufficient but a proper utilization should be there. According to me following are the reasons why even after all these laws and welfare programmes, child labour still continues:

Families, employers, have a vested interest in letting this practice continue.

Poor families look upon children as a means of earning, a one more pair of hands to add to the family kitty.

Employers welcome child labour because they receive half the salary that is paid to adults.

Employers justify child labour using various reasons. They claim that children’s hands are dexterous (useful in the glassware industry, Carpet weaving or beedi making), their eyesight is good (diamond cutting), they are small in size and lightweight useful in mines, cleaning manholes of the city drainage system, factory chimney sweeping etc.

The government too prefer to ignore the health and moral implications of the issue as industries like the carpet industry, which use child labour, yield a lot of export revenue to the country.

Even though we have laws for protection of children’s agencies fail to implement these laws as they tend to ignore the importance of children as future of nation.

Thus my suggestion is through social awareness, involvement of government like labour department, education department, police and judiciary this problem of child labour can be eradicated in a short period of time.

Certificate

The paper titled CHILD RIGHTS AND CHILD PROTECTION: A SOCIO-LEGAL PROSPECTIVE ON ISSUES & CONCERNS RELATING TO CHILD LABOUR IN INDIA is original, exclusive and unpublished material. It is not under consideration for publication elsewhere. Further, it will not be submitted for publication elsewhere, until a decision is conveyed regarding its acceptability for publication in FIR. If accepted for publication, I agree that it will not be published elsewhere either in whole or in part without the consent of FIR. I the undersigned authors hereby, transfer or otherwise convey all copyright ownership of my paper, entitled CHILD RIGHTS AND CHILD PROTECTION: A SOCIO-LEGAL PROSPECTIVE ON ISSUES & CONCERNS RELATING TO CHILD LABOUR IN INDIA to the FIR.

Date: 18.11.2016 Raj Deepak Chaudhary

Address: 3/254, Vinamra Khand, Gomti Nagar, Lucknow Signature