The curious lack of enforcement

Last Updated 06 August 2016, 18:37 IST

The amendments to the Child and Adolescent Labour (Prohibition and Regulation) Act (CALPRA), 1986, with its radically faulty approach, has challenged the constitutional objective of elimination of child labour.

The legislation has been passed by parliament without examining the reasons for mitigation of child labour or examining the reasons for failure of enforcement of existing legislation on child labour. The 2011 Census data states there are 35.3 million child labourers between the age of 5 and 19, a pointer to the gravity of the situation in India.

The argument that ban on child labour is unrealistic considering socio-economic reality, is the basic premise of CALPRA that only prohibits child labour in certain occupations. This argument negates the vicious cycle that perpetuates ill health and poverty of young children and adults. The meagre income that the child brings in to the family may be crucial for their survival, but their submissiveness makes them easy subjects of exploitation in the labour market. They would be paid lesser and put to harsher conditions at work.

One of the predominant problems the child rights movement has noted is lack of enforcement of laws relating to child labour. The question of law enforcement can be approached from two points of view–one, by looking at technical provisions contained in the specific legislation, the legal machinery of enforcement such as inspection departments and court procedure, and second, considering the impact study of the existing legislation and suggesting recommendations for better enforcement.

At present, CALPRA, 1986, has provisions relating to inspectors and judiciary for enforcement of the provisions of the legislation. The enforcement mechanism seems to be half-hearted for the reason that the power of an inspector is only in relation to verification of the age of the child in the establishment. An inspector is not provided with any express powers to investigate working and living conditions at regulated work places. Though Section 13(2) of the Act directs the rules to deal with items relating to health and safety, the Child Labor (Prohibition and Regulation) Rules, 1988, has not provided any provision for the same. The lack of provisions for protecting children from health and occupational hazards at regulated work areas, and on checks on their working conditions leaves their life at the hands of the employer.

This has led to loopholes in penalty provisions. The penalty is being prescribed only for employment of children but not for bad conditions at work. As this legislation regulates/permits child labour at certain occupations, the enforcement mechanisms should be given powers to inspect conditions at work too. The existing legislation fails to care and protect children. There is no mention about their welfare, social security benefits or protective rights.

The legislation expressly allows for employment of children below 14 years at family or family enterprises other than hazardous enterprises, and it permits employment of adolescents in occupations other than hazardous occupations or processes. But the law has ignored the recommendations of the Parliamentary Standing Committee on Labour in its 40th report of December 2013 that such a provision would be misused and could increase child labour, considering the lack of monitoring mechanisms and laborious process of checking children working in their homes.

Loosely worded

It was even pointed out that proving of fact whether the children were merely helping their parents or working to supplement the family income would be difficult. In order to deal with this criticism, it has been provided under Section 17(B) of CALPRA that there would be periodic inspections at places where child labour is prohibited and monitoring of issues relating to provisions of the law. The section is very general and loosely worded without any specifics.

Any legal provision that allows child labour in family enterprises paves way for forced labour against his/her wish to pursue other interests in life. The early exposure to a pattern of employment/work also takes away their innovative or recreational minds. The justification for this provision is based on a conservative argument that a child is supposed to help the elderly or support the family considering the socio-economic reality. It is absurd to impose labour on a child for the economic benefit of the family. Such a statutory provision allowing child labour in “family enterprise”, loosely worded in the definition as “any work, profession, manufacture or process performed by the family in engagement with others”, would definitely lead to forced child labour.

(The writer is assistant professor, National Law University, New Delhi)

(Published 06 August 2016, 18:14 IST)

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