essay on child labour act 1986

A legal critical analysis of Child Labour (Prohibition and Regulation) Act, 1986

• Legal Blogs
• Laxmi Priya Soni
• December 23, 2022

Introduction

Education, health, and the motivation of the economy’s human capital have always been crucial factors in determining personal and social progress. Still, they are now even more critical in a competitive and knowledge-intensive global economy.

From this perspective, a nation’s human capital stock has a significant impact on the rate of economic growth. Long acknowledged as a major impediment to economic progress and eradicating poverty in emerging nations, low levels of human capital development also contribute to other socioeconomic issues.

As children are an asset to a nation, it is the nation’s responsibility to enable them to nurture them through various stages of development so that they can realize their full human potential. In this context, low levels of human capital development directly or indirectly affect the future of children.

However, every child who is not in school or working to support the family faces difficulties owing to their natural development and education, which stops them from achieving proper adulthood and training.

Therefore, if we look at human capital or human capability perspectives, we can see that the prevalence of working children in any community results in a decrease in human capital and human capability, which has a significant negative impact on the economy.

The issue of child labor has increased to the surface in today’s globalized world, where there is a heavy focus on numerous social issues. In Indian society, there has never been much dialogue or debate over child labor.

Children are always regarded as humanity’s greatest gift in every community. Childhood is a crucial period in a person’s development since it might influence how society will evolve in the future. In many places of the world, child labor is still prevalent. It is one of our society’s oldest and most pervasive social problems. [1]

It refers to the employment of children in any job that robs them of their childhood. This group of people is the most disadvantaged, and they are forced to work for meager wages or to help out with household chores, giving up their opportunity to develop personally at a crucial time and interfering with their ability to attend regular school, which is dangerous and harmful mentally, physically, socially, and morally. [2]

Different methods of child exploitation were used at different times. The majority of impoverished and developing nations had this issue. Child labor was a common practice during the 1800s as the industrial revolution progressed. Children under the age of 14 worked in factories, mines, agricultural fields, and as street vendors.

Children from low-income homes were expected to contribute to the family’s income and occasionally worked 12-hour stints with hazardous materials in hazardous environments. The informal economy, which is a byproduct of poverty and can take various forms depending on the society, is where the majority of child labor is found.

Defining child labour

The idea of child creates uncertainty because it is motivated by personal views. Therefore, a standard must be recognized to define the minimum age at which a child is considered to be. The International Labour Organization (ILO) defines child labor as any work that robs children of their youth, potential, and dignity and is detrimental to their physical and mental development.

As a result, under Article 2(3) of the International Labour Organization (ILO), the minimum age for entry into employment or work in any profession “shall not necessarily be below the age of completion of compulsory Schooling and, in any case, shall not be less than 15 years of age” under the ILO’s definition of “Child.”

The ILO explains how child labor is defined in many approaches, and definitions provide various kid labor estimates. [3] However, the UNICEF definition of Child labor is distinctive. According to the 1989 UN Convention on the Rights of the Child, which includes the right to refrain from economic exploitation, “A child is a person under the age of 18.”

As a result, UNICEF’s definition of child labor states that it is defined as “Child labor traditionally referred to children working before they reached the legal minimum age for employment in their country of origin.”

Regarding definitions of children, the Child Labour (Prohibition & Regulation) Act, 1986 in India says that a child is anyone under 18. “A person who has not finished his education and not completed 14 Years of Age. [4]

According to the Factories Act of 1948, “A person below 15 years old is considered to be a child. [5] Similarly, the Juvenile Justice Act, 2000 defines a “Juvenile” or “Child” as “a person who has not reached the age of eighteen years,” whereas the Central Children Act defines a child as “a boy who has not attained the age of 16 or a girl who has not reached the age of 18. [6] “

It becomes clear that there is no legal age restriction for children after considering various concepts connected to children. It varies depending on the Act. Regarding child labor, different occupations have varied age restrictions.

However, under government regulations, a child cannot be employed until they are at least fourteen years old. No child under the age of fourteen may be hired to work in a factory, mine, or in any other dangerous employment, according to the Indian Constitution.

On the other hand, some definitions specifically address the detrimental effects of child labor and are concerned with how dangerous a job might harm a child’s development and growth. Similarly, the Indian government defined child labor as “the employment of children in advantageous activities which are hazardous to their health and rob them of the prospects of growth.”

Legislation and policies relating to child labor

In the Republic of India, there has long been legislation governing and regulating child labor. These laws focused primarily on establishing minimum standards for child labor employment, limiting the number of hours children can work, and ensuring the health and safety of child laborers by outlawing the use of children in high-risk jobs.

Numerous child labor laws prohibit the use of children between the ages of fourteen and fifteen in certain occupations like mines, industries, ships, and transportation.

Since 1881, there have been numerous pieces of legislation that give operating children legal protection. The child Labor Act of 1986 removed the two principal parts of legislation governing child labor, the Children (Pledging of Labor) Act of 1933 and the usage of Youth Act of 1938.

Several Commissions’ various recommendations led to the creation of the Child Labor (Prohibition and Regulation) Act of 1986. By prohibiting child labor in risky commerce and regulating multiple industries, this Act was passed to modernize the legal system.

Constitutional safeguards

The Indian Constitution provides provisions for the advancement, growth, and safety of children; these are mostly found in Parts III and IV, or fundamental rights and guiding principles of public policy. The Indian Constitution expressly addresses children’s welfare and outlaw activities like child labor.

Thus, the Indian Constitution’s Articles show the country’s concern for children in general and child labor in particular. The following articles are as follows:

Article 15(3): Nothing in Article prevents the State from putting specific measures in place for women and children. Thus, this article gives the State the authority to provide for children in a particular manner. [7]

Article 21(A): All children between the ages of 6 and 14 are entitled to free and compulsory education, as determined by state law, under Article 21A. [8]

Article 23: Article 23 prohibits forced labor, beggar work, and another related human trafficking. [9]

Article 24: States that no child under the age of 14 may be hired to work in a factory, mine, or any other dangerous occupation. This is an essential constitutional clause that forbids underage labor in dangerous jobs. [10]

Article 39(f): Requires the State to take steps to guarantee that children have access to opportunities and resources that will allow them to grow up in a healthy way, with freedom and dignity, and that they are safeguarded from exploitation and from being abandoned morally and materially. [11]

Article 39(e) and (f): Require the State to protect children from abuse while they are still young and ensure they are not coerced into careers that are not healthy for their physical development out of financial necessity. The children are safeguarded, and they are provided with the facilities and chances to grow in a healthy way. [12]

Article 45: States that the State shall make every effort to provide all children with early childhood care and education up until the age of six. [13]

Article 51A(k): Makes it the parent’s or guardian’s fundamental responsibility to give their child or ward, who is between the ages of six and fourteen, the opportunity to pursue an education. [14]

The Child Labor Act, 1986

Since 1881, numerous laws have been passed to gradually provide legal protection to children who are working machinery. The Child Labor (Prohibition and Regulation) Act of 1986 [15] repealed the two principal pieces of legislation governing child labor, the Children (Pledging of Labor) Act of 1933 [16] and the Employment Children Act of 1938. [17]

It undoubtedly resulted from various suggestions made by numerous Commissions, including the Sanat Mehta Committee in 1984 and the Gurupad Swamy Committee on Labor in 1976. Because of the policies of both prohibition and regulation, these commissions frequently worked to reform the legal system.

The Act’s objectives and justification argue that numerous laws strictly prohibit hiring children under the ages of fourteen and fifteen for certain types of jobs. However, there is no specific mechanism outlined under any regulation for determining whether jobs, professions, or processes use of children is prohibited.

Additionally, no law regulates the working circumstances of children in most employment situations when they are not forbidden from working and are doing so in a consumptive manner.

Applicability of the Act

Any business or class of establishments that do not engage in the activities mentioned in Section 3 of this Part of the Act are subject to the provisions of this Part.

The Act aims to:

• Forbid the use of children, or those under the age of fourteen, in specific processes and activities.
• Establish a method for deciding whether to make changes to the list of prohibited jobs or functions;
• Control the circumstances of child workers’ employment in the range of jobs they are allowed to hold;
• Impose harsher punishments for employing children in violation of the provisions of this Act and other laws that prohibit doing so;
• Ensure that legislation about children is uniform in its definition of a child.

The Bill’s introduction sparked a lively debate in the Indian Parliament, where lawmakers of all parties participated in the discussion and offered uncommon insights into this long-standing social issue. During the debate, the participants had a particular issue with the following:

Section 3 states that nothing in this section applies to any workshops that the occupier runs with the assistance of his family or to any faculties that have been established by the government or that have received funding from it.

Provisions of the Child Labour Prohibition and Regulation Act, 1986

The Act is divided into four parts and has twenty-six provisions. Part-A is for occupations, and Part-B is for procedures. The Act’s preamble describes it as “An Act to Limit the Use of Children in Positive Employments and to Regulate the Conditions of Work of the Children in Certain Different Employment.” [18]

The Act forbids any United Nations employee who has not reached the age of fourteen years in any of the vocations or procedures outlined in Part A and B of the Act’s program.

The restriction in Part II, section three is not absolute because it does not apply to any workshop run in any way by the occupier’s suggestion and with the assistance of his family or to any faculty that was established through government assistance or that has received government recognition.

Critical analysis of the Child Labour Prohibition & Regulation Act, 1986

The Act is in favor of regulation rather than abolition of child labor with the conflicting dual objectives of prohibiting and regulating child labor, which is in violation of Article 24 of the Constitution.

Another significant gap in the Act is the lack of programs for the child’s rehabilitation. By employing children in regards to their homes and work experience, the caveat attached to Section 3 is being misused. [19]

This provision aids employers in posing as family members of the youngsters working in their facilities, allowing them to continue abusing the children. Additionally, different laws define a child’s age differently. The age of a child cannot be determined using any precise standards or objective scientific measures. As a result, this Act created ambiguity and uncertainty.

Additionally, the Child Labor (Prohibition and Regulation) Act of 1986’s definition of a child conflicts with the Juvenile Justice (Care and Protection of Children) Amendment Act of 2006 [20] And the 1989 United Nations Convention on the Rights of the Child.

Indirectly permitting child labor and only partially outlawing it, Article 24 of the Constitution. It is clear from a straightforward reading of Article 24 that the employment of minors under the age of 14 is not outright prohibited under the Indian Constitution.

Their work is only forbidden in mines, factories, and other dangerous jobs. All establishments must hire children over the age of fourteen, excluding factories, mines, and jobs that could be dangerous. [21]

The many laws and regulations about child labor and child rights seem to function independently of one another. No connections exist between them. It should be highlighted that the child labor rules were unaffected by the right to education—the Right of Children to Free and Compulsory Education Act of 2009. [22]

All children between the ages of 6 and 14 were supposed to get free and required education under the Law. However, the 1986 Child Labour (Prohibition and Regulation) Act makes a mockery of children’s rights by allowing minors under fourteen to work in non-hazardous jobs.

It is possible to conclude that the rules and laws governing child labor are flawed in themselves and violate children’s fundamental right to an education. To make the Act consistent with the right to education, it must be changed immediately. Including children who work in agricultural settings in the definition of child labor is also crucial.

As a result, it can be seen that this Act does not entirely outlaw child labor and does not adhere to the ILO recommendation for the minimum age for employment, which is fifteen years old. India was the first country to join the International Programme for the Elimination of Child Labor (IPECL) when it was established by the International Labour Organization (ILO) in 1991.

However, despite poor plans and program implementation, the issue still exists. Although laws might help with the issue of child labor, their practical implementation remains a challenge.

Relevant case laws

Jayakumar nat & anr vs. state of nct of delhi & anr.

In the case of Jayakumar Nat , “The Delhi High Court directed the Government of NCT of Delhi to come out with a proper scheme to address the issue of rehabilitation of these rescued children by providing them with some kind of economic assistance so that the parents or guardians do not force them to work as child laborers again to meet their basic needs and to supplement their income for their basic survival,” according to a court order dated September 4, 2015. [23]

Roshan Gupta vs. The State of Bihar & Ors

In the case of Roshan Gupta , “The writ petition, which challenges the decisions in Annexures 1 and 2 by which the petitioner imposed a fine of Rs. 20,000, was filed on March 20, 2012. The principal argument made on behalf of the petitioner is that the punishment was imposed on the basis that the petitioner had used a Child as labor in his shop without providing him the chance to clarify the circumstances in which Ravi Kumar was working there.

[24] The functioning of the order set forth in Annexures 1 and 2 shall not change in the interim. With the aforementioned observation of the facts and directive, the writ petition is dismissed.”

Own Motion vs. The State of Jharkhand

In the case of Own Motion , “The Petitioner claimed that nothing had been done to address the issue of child labor, and further that the State had not disclosed anything about how they came up with this horrifying situation of child labor. [25]

The Jharkhand High Court has ordered the State to file an affidavit about the status of its investigation, which will also detail the number of programs the Department of Child Welfare has implemented in the State of Jharkhand to address the issue.”

Since child labor is a global issue, sustained effort is needed to eradicate it. On this front, the Indian government has also made some progress. However, socioeconomic factors like poverty prevalent in the nation have a vital role in determining child labor.

Access to schooling is another factor. In certain places, education is either unaffordable or deemed insufficient. Children work because they have no other options. As a result, India needs to implement its child protection legislation adequately.

However, from the analysis of the pertinent statutory sections of the Indian laws relating to child labor that the statutes differ as to the minimum age at which a child may be engaged or permitted to work in particular industries.

There is no rule defining the minimum age at which children may work in agriculture. While the International Labor Organization (ILO) Convention specifies a minimum age of 15 for any employment, the Factories Act of 1948 sets a minimum age of 14.

The minimum age for employment in non-industrial jobs ranges from 12 to 14 years, unlike plantations where the age of employment has been set at 12. As a result, Indian laws pertaining to child labor fall short of the ILO’s established worldwide standards. Thus, ending child labor in all its manifestations is our responsibility and can only be accomplished if the government and society take ownership of the situation.

Findings & suggestions

It may be agreed that the Law itself has flaws that can be easily exploited, so trying to enforce the Law through labor inspectors is unlikely to produce results. The Central Government’s most recent attempt to increase the penalty through new legal amendments is likely to have the same outcome.

To permanently address the issue of child labor, it may be necessary to adopt the principles of compulsory primary education for children aged 6 to 14 and compulsory vocational education and training for children aged 14 to 18 who are actively engaged in the labor market.

Non-governmental organizations can play a more vital role in locating and observing businesses that exploit child labor while also acting as a pressure group to emphasize the value of education.

The idea of a punishment-oriented law or higher penalty should be supplemented by the adoption of the principle of compulsory education, both formal and vocational, as a requirement on the Part of the employer in order to permanently end the problem of child labor. It needs to be incorporated into the legal system.

The fate of millions of children in India is at stake in this most contentious legal issue. The common misconception that child work is solely a result of poverty is not always true. To address the issue, the social mindset needs to shift, and strong political will is urgently needed.

• Strict regulations and efficient enforcement
• Aiding charities like Save the Children
• Discouraging people not to hire minors for domestic, commercial, industrial, etc. work.

Bibliography:

The Child Labour (Prohibition and Regulation) Act, 1986.

E- Sources:

• <https://blog.ipleaders.in/child-labour-prohibition-regulation-act-1986>
• <https://lawwire.in/an-analysis-of-the-the-child-labour-prohibition-and-regulation-act-1986>

3.<https://www.unicef.org/india/what-we-do/child-labour-exploitation>

4.<https://www.ijlmh.com/paper/a-comparative-analysis-of-child-labour-laws-in-us-india>

5.<https://www.legalserviceindia.com/legal/article-6589-conceptual-analysis-on-child-labour-protection-act-1986>

S.N. Mishra, Labour & Industrial Laws (29 th edn, Central Law Publication 2019)

References:

[1] Nimisha Dublish, The Child Labour (Prohibition and Regulation) Act, 1986, blog.ipleaders.in (July. 25, 2022, 9:30 PM), <https://blog.ipleaders.in/child-labour-prohibition-regulation-act-1986>

[2] Id. at 2

[3] Dr Ranjit Sil, Child Labour: A Critical Legal Analysis, nbu.ac.in (July.28, 2022, 10:00 PM), <https://ir.nbu.ac.in/bitstream/123456789/3034/1/March2017_02.pdf>

[4] The Child Labour (Prohibition & Regulation) Act, 1986, No. 61 of Acts of Parliament, 1986 (India)

[5] The Factories Act, 1948, No. 63 of Acts of Parliament, 1948 (India)

[6] The Juvenile Justice Act, 2000, No. 56 of Acts of Parliament, 2000(India)

[7] Indian Const. art. 15, cl. 3.

[8] Indian Const. art. 21, cl. A.

[9] Indian Const. art. 23.

[10] Indian Const. art. 24.

[11] Indian Const. art. 39, cl. F.

[12] Indian Const. art. 39, cl. E.

[13] Indian Const. art. 45

[14] Indian Const. art. 51, cl A(k).

[15] Supra note 7, at 4

[16] The Children (Pledging of Labour) Act, 1933, No. 2, Acts of Parliament, 1933(India)

[17] The Employment Children Act, 1938, No.026, Acts of Parliament, 1938(India)

[18] Id . at 4

[19] The Child Labour (Prohibition & Regulation) Act, 1986, 3, No. 61 of Acts of Parliament, 1986 (India)

[21] Kaushiki Ranjan: A Critical Legal Analysis on Child Labour in India, manupatra (August. 05, 2022, 8:30 PM), <https://articles.manupatra.com/article-details/A-critical-analysis-on-Child-Labour-in-India>

[22] RTE Act, 2009, No. 35, Acts of Parliament, 2009(India)

[23] Jayakumar Nat & Anr v. State of NCT Delhi & Anr, SC 2015

[24] Roshan Gupta v. The State of Bihar & Ors, SC 2021

[25] Own Motion v. The State of Jharkhand, SC 2004

This article has been authored by Laxmi Priya Soni, a student at the School of Law, Gitam University Visakhapatnam.

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