Child labour

Millions of children employed as child labour present a formidable challenge to the society in their rescue and rehabilitation. Vested political and corporate interest impede their retrieval. Legal efforts appear inadequate globally.

1. A PRESENTATION ON CHILD LABOUR by Maj Gen Nilendra Kumar An effort for Bachpan Bachao Andolan and Lex Consilium Foundation

2. CHILD LABOUR “ 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 American social worker

3. CHILD LABOUR Child labour refers to the employment of children in any work that deprives children of their childhood. It may interfere with their ability to attend regular school. It is mentally, physically, socially or morally dangerous and harmful.

4. ANOTHER DEFINITION “The system of employing or engaging a child to provide labour or service to any person, for any payment or benefit , paid to the child or to any other person exercising control over the said child .” Delhi High Court in Save the Childhood , Foundation Case , 15 th November 2014) WP(Crl), 2069/2005

5. BEGAR It may be loosely described as labour or service which a person is forced to give without receiving any remuneration for it. PUDR v UOI, (1982) 3 SCC 235.

6. NUMBERS OF CHILD LABOURERS GLOBALLY 168 million (ILO data) It is a myth that the children employed as child labour are usually orphans. Only about 3 out of 1000 are orphans

7. SIZE OF CHILD LABOUR “According to ILO today more than 168 million children between the ages of 5 and 14 work.” INDIA Officials estimates indicate the number of child labourers as 4.3 million. Analysis of census data 2011 by BBA puts the number as 11.7 million. Number of children between 6-14 years (as per Census 2011) who are out of school is 33.9 million. These are all vulnerable to labour.

8. NUMBER OF WORKING CHILDREN IN INDIA Main workers (who work for more than six months in a year) - 4.35 million Main workers, marginal and those seeking (available for) work- 11.7 million -Census data 2011 (ORGI)

9. MHA and MWCD Data Child Trafficking cases - 4,52,000 Prosecutions – 25,006 APPALING FIGURES NUMBER OF CONVICTIONS FOR CHILD LABOUR DURING 2008-12: 3394 Obviously, the offenders are not being made to answer for their answers for their crimes. Source: Crime in India Report 2014 & 2015 National Crime Records Bureau 2014 2015 FIR lodged 147 251 Victims rescued 485 449 Offenders produced for trial 74 152 Convictions 3 7 Pendency 90% 94.3%

10. CHILDHOOD TRAMPLED Children are at work as domestic servants, in different industries, service sectors, agricultural sector, unskilled labour etc.

11. CHILD LABOUR IN CARPET INDUSTRY Out of 3,00,000 child workforce 70 percent are migrants and engaged in bonded labour. They hail from the states of Bihar and Madhya Pradesh in India and Nepal .

12. PRIME REASONS FOR CHILD LABOUR Unemployment Poverty Illiteracy Demographic explosion

13. Child Labour Lack of Education Poverty June 12 th is designated as World Day Against Child Labour Relationship between Child labour, Illiteracy and Poverty

14. POINT TO PONDER Some believe that mere retrieval of children employed as labour and imparting them education may not be able to prevent them from being drawn as child labour again, unless they are empowered in gain full skills.

15. REASONS WHY CHILD LABOUR CONTINUES Lack of concern towards poor and neglected children Lack of political will Poor enforcement of rural development and poverty alleviation schemes No assurance of minimum wages for adults workers No fair price to farmers Absence of free and quality education

16. WHY EMPLOYERS PREFER CHILDREN OVER ADULTS Children are docile. Cheaper option for the employer. A child my not be paid even one fourth of the wages paid to an adult.

17. LINK BETWEEN CHILD LABOUR AND SOCIAL JUSTICE Child labour is concerned not only with development and welfare, it is a violation of human rights. Economic exploitation of children cannot be justified on grounds of poverty alleviation of the family. Child labour deprives children of their due involvement in economic, social and political activities. It takes any their basic rights to education, freedom and equality. Child labour is universally a crime.

18. SOCIAL JUSTICE Fair and just relation between the individual and society. It is the process of ensuring that individuals fulfil their societal roles and receive what was their due from the society. The fair and proper administration of laws conforming to the natural law that all persons, irrespective of ethnic origin, gender, possessions, race, religion etc are to be treated equally and without prejudice.

19. RISK AND CONSEQUENCES Children are more prone to injuries and occupational hazards. Made to work under unregulated conditions for almost 12 – 14 hours in a day. Emerge as docile and cheapest source of labour. Child labour results in adult unemployment. Children always remain poor, illiterate and deprived of development and growth opportunities.

20. CONSEQUENCE Demographic analysis shows that population growth is much higher in child labour prone areas and potential source areas of child trafficking

21. In India, 55 million child labourers earn about Rs 150 million a day. It translates to less than Rs 3 per child.

22. CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986 An Act to prohibit the engagement of children in certain employments and to regulate the conditions of work of children in certain other employment.

23. PROHIBITION It means a law or an order that forbids a certain action.

24. REGULATION It means the act or process of controlling by either rule or restriction.

25. PROHIBITION OF EMPLOYMENT OF CHILDREN IN CERTAIN OCCUPATIONS AND PROCESSES Section 3- No child shall be employed or permitted to work in any of the occupations set forth in Part A of the schedule or in any workshop wherein any of the processes set forth in Part B of the schedule is carried on: Provided that nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by or receiving assistance or recognition from Government.

26. OCCUPATION It means an activity or pursuit in which a person is engaged, especially a person’s usual or principal work or business.

27. CHILD Section 2 (ii) means a person who has not completed his fourteenth year of age.

28. ESTABLISHMENT Section 2 (iv) includes a shop, commercial establishment, workshop, farm, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment.

29. FAMILY Section 2 (v) In relation to an occupier means the individual, the wife or husband ,as the case may be ,of such individual and their children, brother or sister of such individual.

30. OCCUPIER Section 2 (vi) In relation to an establishment or workshop means the person who has the ultimate control over the affairs of the establishment or workshop.

31. WORKSHOP Section 2(x) means any premises (including the precincts thereof) wherein any industrial process in carried on.

32. REGULATION OF CONDITIONS OF WORK OF CHILDREN

33. HOURS AND PERIOD OF WORK Section 7 No child shall be required or permitted to work in excess of such number of hours as may be prescribed for such establishment or class of establishments. The period of work on each day shall be so fixed that no period shall exceed three hours and that no child shall work for more than three hours before he has had an interval for rest for at least one hour. The period of work of a child shall be so arranged that inclusive of his interval for rest under sub section (2), it shall not be spread over more than six hours including the time spent in waiting for work on any day.

34. No child shall be permitted or required to work between 7 PM and 8 AM. No child shall be required or permitted to work overtime. No child shall be required or permitted to work in any establishment on any day on which he has already been working in another establishment. Section 8 Weekly Holidays:- Every child employed in an establishment shall be allowed in each week, a holiday of one whole day, which day shall be specified by the occupier in a notice permanently exhibited in a conspicuous place in the establishment and the day so specified shall not be altered by the occupier more than once in three months.

35. Under the CL PRA, only 13 industries were placed in the prohibited category. There was no child labour prohibition for agriculture, construction, domestic work and restaurants.

36. DISPUTES AS TO AGE Section 10 If any question arises between an Inspector and an occupier as to the age of any child who is employed or is permitted to work by him in an establishment, the question shall ,in the absence of a certificate as to the age of such child granted by the prescribed medical authority, be referred by the Inspector for decision to the prescribed medical authority.

37. MAINTENANCE OF REGISTER Section 11 There shall be maintained by every occupier in respect of children employed or permitted to work in an establishment, a register to be available for inspection by an Inspector at all times during working hours or when work is being carried on in any such establishment, showing The name and date of birth of every child so employed or permitted to work; Hours and periods of work of any such child and the intervals of rest to which he is entitled; The nature of work of any such child, and Such other particulars as may be prescribed.

38. PENALTIES Section 14 Whoever employs any child or permits any child to work in contravention of the provisions of Section 3 shall be punishable with imprisonment for a term which shall not be less than three months but which may extend to one year or with fine which shall not be less than 10,000/- Rs but which may extend to Rupees 20,000/- or with both.

39. PROCEDURE RELATING TO OFFENCES Section 16 Any person, police officer or inspector may file a complaint of the commission of an offence under this Act in any court of competent jurisdiction. Every certificate as to the age of a child which has been granted by a prescribed medical authority shall, for the purposes of this Act , be conclusive evidence as to the age of the child to whom it relates. No Court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act.

40. CLASSES OF CRIMINAL COURTS Section 6 Cr.PC Court of Session Judicial Magistrate of first class/ Metropolitan Magistrate Judicial Magistrate of the second class Executive Magistrate

41. JUVENILE JUSTICE (CARE AND PROTECTION OF CHILDREN) ACT, 2015 Section 79 Whoever ostensibly procures a juvenile or child (an individual less than 18 years) for the purpose of any hazardous employment, keeps him in bondage, withholds his earnings or uses such earnings for his own purposes shall be punishable with up to three years imprisonment and shall be liable to fine.

42. LANDMARK JUDGMENT

43. People’s Union for Democratic Rights v. UOI 1982 AIR 1473,1982 SCC (3) 235 Decided on: 18 Sep 1982 Bench: Justices PN Bhagwati and Baharul Islam

44. FACTS OF THE CASE PUDR, an organization for protecting democratic rights, commissioned three social scientists for investigating and inquiring working conditions of the workman engaged in various projects of Asiad. Children below the age of 14 years were found to be employed by the contractors in the construction work. Based on their report, complaints about violation of various labour laws was made to the Supreme Court of India by way of a letter to one judge. The Supreme Court treated the letter as a writ petition.

45. Held , Public interest litigation is a strategic arm of the legal aid movement and is intended to bring justice within the reach of the poor masses. It is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and undressed . The poor too have civil and political rights and the Rule of Law is meant for them also.

46. Legal aid is the provision of assistance to people otherwise unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.

47. 2) Public interest litigation is essentially a co-operative or collaborative effort on the part of the petitioner, the state or public authority and the court has to secure observance of the constitutional or legal rights, benefits and privileges conferred upon the vulnerable sections of the community and to reach the social justice to them.

48. 3) The time has now come when the courts must become the courts for the poor and struggling mases of the country. Social justice is the signature tune of our Constitution.

49. 4) Construction work is clearly a hazardous occupation and it is absolutely essential that the employment of children under the age of 14 years must be prohibited on every type of construction work.

50. 5) The complaint of violation of Article 24 based on the averment that children below the age of 14 years are employed in the construction work of the Asiad Projects is clearly a complaint of violation of fundamental rights.

51. 6) There are certain fundamental rights conferred by the constitution which are enforceable against the whole world and they are to be found inter alia in Articles 17, 23 and 24. Art. 17- Abolition of untouchability Art. 23- Prohibition of traffic in human beings and forced labour. Art. 24- Prohibition of employment of children in factories, etc.

52. RAID & RESCUE Provisions for best interest of child Based on information received, NGOs in concert with a SDM, officers of police, labour dept. carry out a surprise operation for the rescue of child labour who are thus released from bondage. The premises are sealed. The statement of victims are recorded and they are issued a release certificate before repatriation to their home.

53. RAID It means a sudden attack or invasion by law enforcement officers, usually to make an arrest or to search for an evidence of the crime.

54. RESCUE It means the act or an instance of saving or freeing someone from danger or captivity.

55. BEST INTEREST OF THE CHILD DOCTRINE A standard by which an authority determines what arrangements would be to a child’s greatest benefit. The decision is taken on whatever best advances the child’s welfare.

56. NORMS TO BE OBSERVED AT A TRIAL OF OFFENDERS UNDER CLPRA, 1986

57. TRIAL COURT The court to create a child friendly atmosphere . The trial to be conducted in camera. The child victim should not be confronted with the accused. The court may resort to recording of statement through video conferencing. The court may direct that the questions to be put by the accused to the child victim be given in writing to the Presiding officer who may in turn put the same to the victim in a language neither embarrassing nor confusing.

58. RIGHTS OF A VICTIM / RESCUED PERSON Will be interviewed by the police officer or a member of recognized welfare institution or NGO or Social worker. It will not be in the presence of employer or any of his agent. To be always kept segregated from the offender. Provide police protection if threatened by the employer. To be kept informed about the progress of the case. To be treated gently and correctly.

59. Help of interpreter during interview, if needed. To be informed of eventual repatriation / rehabilitation. Safety of self and family ensured. Statement under Section 161 CrPc to be recorded only when the victim is comfortable , willing and fit to do so. Identity will not be revealed and anonymity will be maintained. To be informed and assured of all actions in their best interest. Their belongings will be kept safe.

60. Their siblings /relations if any , will also be rescued . 14. To point out physical injuries , trauma if any, at the time of recording of statement . Record also any harm suffered, whether emotional or psychological. 15. Victim can select the place of interview . eg., at shelter, children’s home , any other place of safety where he is comfortable. 16. In case of sexual exploitation , the statement to be recorded in camera. 17. To receive appropriate medical attention.

61. POSITION IN OTHER REGIMES UNITED STATES The main law regulating child labour in the United States is the Fair Labour Standards Act, 1938. For non-agricultural jobs, children under 14 may not be employed. Children between 14 and 16 may be employed in allowed occupations during limited hours, and those between 16 and 18 may be employed for unlimited hours in non hazardous occupations. A number of exceptions to these rules exist , such as for employment by parents, news paper delivery and child actors. The Act also contains broad exemptions permitting farm work by children , including children under 12.

62. The secretary of labour has designated a number of occupations as ‘particularly hazardous’. The designations includes manufacturing explosives, working in coal and other mines, power driven machinery, slaughtering and meat packaging establishments and rendering plants, roofing and excavation.

63. Young entrepreneurs who use the family lawnmower to cut their neighbors grass or perform babysitting on a casual basis are not covered under the FLSA.

64. The Federal Child Labour Provisions do not- Require minors to obtain working papers or work permits, though many states do Limit the numbers of hours or times of day that workers 16 years of age and older may legally work though many states do

65. CRITICISM Federal child labour enforcement like state prosecutions have been generally inadequate. FSLA has not provided any express private rights of action for violation of child labour provisions.

66. CASE LAW The child labour case (Hammer V. Dagenhart; 247 US 251, 1918) relied on the tenth amendment to declare a federal law as unconstitutional. The law was meant to prohibit in inter state commerce of goods produced in factories that employed children under the age 14 or employed children between the age of 14 and 16 for more than 8 hours a day or six days a week. The court said that regulating the hours of labour of children was entrusted (entirely) to the state authority.

67. EUROPEAN UNION Many of the children working across Europe have extremely hazardous occupations in agriculture, construction, small factories or on the street. This has been reported for example in Albania, Bulgaria, Georgia, Moldova, Montenegro, Romania, Serbia, Turkey and Ukraine.

68. Experts have remarked that child labour interferes with children’s schooling; their results are soon affected and they may eventually drop out of school. This only perpetuates the cycle of poverty. Choosing education over work for children is the only way for a country to develop.

69. ACCORDING TO ILO Worst forms of child labour are witnessed in slavery, debt bondage, prostitution, pornography, forced recruitment of children for use in armed conflict, use of children in drug trafficking and other illicit activities and all other work likely to be harmful or hazardous to the health, safety or morals of girls and boys under 18 year of age.

70. GOOD PROGRESS TOWARDS CHILD LABOUR FREE SOCIETY Turkey Brazil China South Africa Sri Lanka

71. “In my opinion, apathy and lack of respect towards childhood are the biggest drivers of child labour. This attitude is reflected through many manifestations including low level of social responsiveness which emanates from lack of concern towards poor and neglected children.” - Kailash Satyarthi. QUOTE