Guest Post By ENAKSHI GANGULY
(A response to THE CHILD LABOUR (PROHIBITION AND REGULATION) AMENDMENT BILL, 2015)
The Government of India is presenting before the country an amendment to the Child Labour (Prohibition & Regulation) Amendment Bill, 2012. This amendment had been first proposed by the UPA government in 2012. The initial announcement that the law would now ban all forms of labour for children upto the age of 14 years and in hazardous occupations till the age in the 14-18 year age group was welcomed by activists. We felt that at last our plea of over two and a half decades to harmonise the child labour law with the right to education had been finally addressed.
Reading the final print of the law however raises a number of concerns. Frankly, apart from the distinction made in separating the children up to 14 years and 14 -18 years, in their treatment, and increase in penalties on employers, the law is not a huge progress between 1986 and 2015 or for that matter 1938, which was the first time a law child labour was enacted. This, despite the changes in socio-economic status as well as law and policy in the country in this period.
In fact, it is very much in keeping with the arguments offered by the government on social realities, to continue with the reservation on Article 32 (dealing with child labour) of the UN Convention on the Rights of the Child (which India ratified in 1992), with the it arguing “….that it is not practical immediately to prescribe minimum ages for admission to each and every area of employment in India – the Government of India undertakes to take measures to progressively implement the provisions of article 32, particularly paragraph 2 (a), in accordance with its national legislation and relevant international instruments to which it is a State Party”
Let’s go back to 1985 when a draft bill presented by an NGO, for the first time introduced the concept of regulation of working conditions, rather than complete prohibition of child labour. Groups working with children and child labour were all drawn into a nationwide debate. They were divided in their stand. One group felt that, although it may not be possible to eliminate child labour immediately, any move — legal or programmatic must be towards elimination. The second group felt that since child labour was a ‘harsh reality’ steps must be taken to ensure that they are not further exploited and therefore, legal measures were required to ensure this. This draft was what was converted into the Child Labour (Prohibition and Regulation) Act 1986.
For those of us who have been witnesses to the debates around child labour since the 1980s, there is sense of déjà vu. The PIB release that released on 16 May 2015 says – However, while considering a total prohibition on the employment of child, it would be prudent to also keep in mind the country’s social fabric and socio-economic conditions. In a large number of families, children help their parents in their occupations like agriculture, artisanship etc. and while helping the parents, children also learn the basics of occupations. Therefore, striking a balance between the need for education for a child and the reality of the socio-economic condition and social fabric in the country, the Cabinet has approved that a child can help his family or family enterprise, which is other than any hazardous occupation or process, after his school hours or during vacation”.
This could be an undated statement as this is exactly the same argument that the government had made in 1985-86 to allow for children to be able to work in family based work or for skill training, even if it was hazardous. The only difference in 2015 is that while making an exception for children to be engaged in family based enterprises, the current bill qualifies it by saying that children must continue in school as per their Right to Education, and specifies that the family enterprise must not be hazardous. But therein lies the gap.
Loopholes in the law- are they deliberate?
‘Family’ is defined in the proposed bill as child’s mother, father, brother, sister and father’s sister and brother and mother’s sister and brother. It uses the word ‘help’ to describe the child’s involvement in the family enterprise (after school hours and during vacations).
In a feudal, caste driven Indian society what do these provisions amount to? Child labour in India has become so normalised that there is neither shock nor shame – it is a ‘necessary evil’. Since most family based occupations in India are caste based, the exception in Section 3 in the law, which allows children to work in family occupations, will only keep the caste system intact-like, for a potter’s son/daughter to be a potter, a weaver’s child to be a weaver and so on. Without doubt, this kind of a law will worst affect the dalit and the marginalised who are at the bottom of the caste hierarchy. The Ministry officials of course say that this is taking the argument too far!
But, why would the government of a country, that is today by its own admission, the fastest growing economy of the world, feel compelled to justify and keep children in labour despite Parliamentary Standing Committee examining the bill saying: “The ministry is itself providing loopholes by inserting this proviso since it would be very difficult to make out whether children are merely helping their parents or are working to supplement the family income. Further, allowing children to work after school is detrimental to their health as rest and recreation is important for their physical and cognitive development.”  The Committee also stated that rest and recreation is of utmost importance for the mental and physical development of a child and that working will only adversely affect their studies and their health.
Clearly, the Committee was more cognizant of the fact that children in India find it very hard to continue in school. That is why despite rising enrolment, retention is not that great. It is the girls, the dalits and tribals who are ones who drop out to ‘help’ the family.
It must be recognised that the assumption, that ‘cultural traditions’ have to be accepted without intriguing into the inherent inequalities, perpetuates certain historic exploitative practices. It has been argued that any abstraction of child labour from children’s work accords social acceptability to some forms of child-work, masking marked ideological and gender biases in society. 
The officials of the Ministry of Labour and Employment who have drafted this bill say that this proviso is imperative to prevent criminalisation of parents and families. As a very senior official said “this explanation or exception is necessary, otherwise if I ask my child to put a nail on the wall—that too can be counted as child labour and lead to my prosecution- see how dowry law is used to harass innocent people. We don’t want a similar situation with this law”.
A quick look at the government’s own statistics of prosecution tells us how limited the use of the law has been in the past.
|Details of Action Taken Against Employers Under the CLPRA, 1986|
|Government of India, Ministry Of Labour and Employment, Lok Sabha, Unstarred Question No.1285, Answered on 01.12.2014, Conviction under Child Labour Laws.http://188.8.131.52/LssNew/psearch/QResult16.aspx?qref=6668|
What is more, the government also noted that most employers were acquitted by the courts as the prosecution failed to prove the offence due to the casual approach of the prosecution witnesses and inability to produce independent witnesses. 
Under these circumstances, is it at all likely that ‘zealous members of society’ that sees child labour as normal and necessary or labour inspectors who have been ineffectual in the past, will go around snooping into people’s houses only to pick up poor parents and prosecute them?
Defining or conceptualising child labour has been and continues to be one of the most complex issue as it involves three difficult-to-define concepts ‘child’, ‘work’and ‘labour’. Each of them is defined differently by different countries and internationally. As stated by Burra, “those who have argued for narrow definition have best been motivated in part by the desire to reduce the size of the problem and thus make it manageable. But this conceptual sleight of hand flies in the face of common sense results in making the work of millions of children invisible to public policy and public action.” This indeed is the reality even today.
Moreover, apparently non-exploitative, the notion of domestic work needs unpacking in the light of the fact that many children never get enrolled in school or are forced to drop out because they have to look after the home chores or undertake sibling care, and this is especially true for girls. This was an area that was highlighted and discussed even when the debate around child labour was at its nascent stage and continues to be as relevant today.
Children will and must support their families or ‘help’ their parents- they do so today and they will continue to do so. The problem lies in the inclusion of this proviso in the law, especially since we are well aware that the notion of family is a very wide and ambiguous in India. This is exactly the kind of legal loophole that has led to the continuation of child labour till now. Past experience of implementation of the law that had a similar proviso (Section 3 of the CLPRA, 1986) has amply shown that this was the one way in which children were tied to home based work and exploited.
Given the reality that the trafficking of children is rampant, in the back drop of the wide concept of family, this could also lead to children being trafficked for work as many traffickers claim that the children in their care are ‘family’. In the absence of comprehensive birth registration it may be very difficult to ascertain whether a child is really part of the family or not. In addition, many families may host children from the extended family as part of informal kinship care.
Remember, that the government is also in the middle of discussions on sponsorship- which will include kinship care.
And although all children are banned from working in hazardous occupations, the 16 occupations and 65 processes that were listed as hazardous in the 1986 law has now been replaced in the Bill with -mines, inflammable substance and hazardous processes which has the meaning assigned to it in clause (cb) of the Factories Act, 1948. These are the same that will also apply to the 14-18 year olds categorised as ‘adolescents’ in the Bill.
This reduction in the number of occupations that fall into this category and no provisions in it for an increase in this list, means that children will be employed in domestic work, hotel and dhabas and several other such places that have now come to be recognized as extremely hazardous occupations.
Besides, every day newer ‘occupations’ are coming up which are hazardous and dangerous. For example when the law in 1986 was formulated, there was no employment related to e-waste and no one can deny that children engaged in working with e-waste are in extremely hazardous occupations! Similarly the impact of working with pesticides on children in agriculture was not there in the past neither was working with bags full of hair to make wigs! But they will not find a place in the law.
Also, this proviso has been put in without taking into consideration the fact that although free and compulsory education is a right of children in the age-group of 6-14 years, we have only seen an increase in the enrolment rates, while attendance and retention of the students is still a challenge we are yet to overcome. In a situation when children feel compelled to work to support their families, there is a greater likelihood of their dropping out of school.
The second proviso that has been included in the Bill is address children working as an artist in the audio- visual entertainment industry or in sports activities except circus. These are welcome inclusions given the large number of children in advertisements and reality shows today, or to address the fate of children like Budhia. But what about children who are street performers and acrobats risking their lives on ropes and poles (although not in circus, what they do is not very different) or “artists” who are singing and dancing late into the night in restaurants and weddings? They are not covered by this law. Is that because they are needed to preserve our rich social fabric? There is a definite class bias to the law that needs to be addressed.
In fact it is high time to consider an amendment to Article 24 of the Constitution of India which identifies child labour as only those children below the age of 14 years and bans employment of child labour in only hazardous employments. In doing so, it remains silent on employment of children above the age of 14 years and allows a statutory distinction between ‘hazardous’ and ‘non-hazardous’ sectors of employment, which has resulted in a serious challenge in dealing with the issue. It does not tell us what is to be done with the remaining children between the age of 14-18 years. This is important because this is how children have come to be defined in the National Policy for Children, 2013 and the provisions of the Juvenile Justice (Care and Protection of Children) Act, 2000, National Plan of Action for Children, 2005 and other legal and policy instruments.
The Ministry of Labour and Employment says that the law is drafted keeping in view the option that the age upto which free and compulsory education will be made available can be raised and the law on child labour will be applicable accordingly. This is very welcome as today, the Right to Free and Compulsory Education law which only gives the right to education upto 14 years, or class eight, needs review as it does not qualify children for any further education or entry into any skill based/ vocational training in any recognised institute such as ITIs. The age of child labour would then automatically be raised and our children protected. There is a clear argument for increasing the age of right to free and compulsory education to a minimum of secondary education so that children are protected from labour and exploitation. Although this is not in the purview of discussions around this bill, given the intrinsic connection between education and child labour, this cannot be ignored.
While in the 1980s and before, “nimble hands” were needed to knot carpets, today they are needed to cross-pollinate BT Cotton Seeds! It is perfectly justified! Most of middle class India, including many bureaucrats and political leaders feel it is perfectly “OK” to employ children as domestic workers as the children of the poor “need” to protection of art, culture and crafts and children’s working to do that is also justified.
This amendment to the child labour law must not be read in isolation. For example read the definition of family enterprise which means any work, profession, manufacture or business which is performed by the members of the family with the engagement of other persons along with the proposed Small Factories (Regulation of Employment and Conditions of Services) Bill that seeks to exempt units employing less than 40 workers from 14 labour laws including the child labour law etc. Will these small factories also be part of “Family enterprises” that children will be “helping” in? The Factories Amendment Bill continues to have several clauses that allows for children below 14 years to continue working.
Indeed, this Bill must be seen and analysed in the context of the dilution of labour laws and standards in the country and the move towards greater informalisation of labour and the push towards manufacturing in the unorganised sector. As Mr. Shankar Aggarwal, Secretary Ministry of Labour and Employment is quoted saying “All the amendments are being done keeping in mind three things—need of the times, workers’ protection and creating an environment for more job creation,” ….“Every year, the country needs to create an excess of 10 million jobs and for that manufacturing sector is key. The proposed labour reforms will help the pace of industrialization while keeping workers’ rights intact.”
Clearly the main stress of the Ministry is to create jobs to meet the needs for manufacturing, not so much to protect children. In this backdrop, when production is pushed into the homes, who is to regulate the entry of children into the work force? This is nothing but keeping the un-scrutinised and the unregulated informalisation of labour alive, so that corporates can ‘make in India’ without having to deal with the labour unions and the labour laws.
Not convinced? Watch a film Stained Glass by Meera Dewan. She had made a poignant, and for many of us, a life changing film- Whose Children in 1986, just as the discussion on the child labour bill was on. She has followed the children that were there in her film in 1986 into their adulthood in Stained Glass. As we discuss the new amendment, it is good to see what those children of 1986 and now adults of today have to say, as also the child labourers of today.
Is it not a shame for the fastest growing economy of the world to continue with its growth path on the backs of children and justifying it as a social reality? And is it not time that the law on child labour was aspirational rather than a reflection of “harsh social reality”?
Laws can be used to lead the change and this is one such opportunity that has come after 29 years. Let us not lose it.
 Excerpt from India’s Declaration to Article 32 of the UN Convention on the Rights of the Child
Children in Globalising India- Challenging our Conscience, HAQ: Centre for Child Rights http://www.haqcrc.org/sites/default/files/2002%20Chapter%20-%209_The%20working%20Child.pdf Accessed on 09.06.15
 Standing Committee On Labour (2013-2014) Fifteenth Lok Sabha Ministry Of Labour And Employment The Child Labour (Prohibition And Regulation) Amendment Bill, 2012 Fortieth Report http://184.108.40.206/Lsscommittee/Labour/15_Labour_40.Pdf Accessed on 16.06.15
 Sumi Krishna (1996), Restoring Childhood: Learning, Labour and Gender in South Asia, Konark,
New Delhi, p21
 Myron Weiner, Neera Burra and Asha Bajpai, 2006: Born Unfree. Child Labour, Education and the State in India. OUP. New Delhi. Pg.XXV.
 For example see Clauses 18, 43, 57
Enakshi Ganguly is the Co-Director of HAQ: Centre for Child Rights. The opinions expressed in this article are personal. They must not be attributed to the organization that she is a part of.