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CHAPTER –11

CONCLUSION AND SUGGESTIONS

“I am the child. All the world waits for my coming. All the earth watches

with interest to see what I shall become. Civilization hangs in the balance.

For what I am, the world of tomorrow will be. I am the child. You hold in

your hand my destiny. You determine, largely, whether I shall succeed or

fail. Give me, I beg you, that I may be a blessing to the world”.

- Mamie Gene Cole

11.1 Conclusion

Children constitute the nation’s valuable human resources. The future well

being of the nation depends on how its children grow and develop. The great poet

Milton said “Child Shows the man as morning shows the day”. So it is the duty of the

society to look after every child with a view to assuring full development of its

personality. Children are the future custodians and torch bearers of the Society: they

are the messengers of our knowledge, cultural heritage, ideologies and philosophies.

Children are really future components in the form of great teachers, scientists, judges,

rulers, doctors, planners, engineers, politicians on whom the entire society founded

(rests). Unfortunately millions of children are deprived of their childhood and right to

education and there by they are subjected to exploitation and abuse. 1

The age of the child has been differently defined in different laws. There is no

definite criteria or scientific parameters in defining the age of the child. The

Constitution of India under Art.24 defines ‘Child’ as any one below the age of 14

1 Supra, chapter -2

409

years and who shall not be employed to work in any factory or mine or engaged in

any other hazardous employment. Under Child Labour (Prohibition and Regulation)

Act, 1986 ‘Child’ means a person who has not completed his 14 years of age. Article

21-A of the Constitution states that the state shall provide free and compulsory

education to all children of the age of six to fourteen years in such manner as the State

may by law determine. Now, amended Article 45 of the Constitution states that, the

state shall endeavor to provide early childhood care and education for all children

until they complete the age of six years. But according to Art.1 of the United Nations

Convention on the Rights of the Child 1989, a child means every human being below

the age of 18 years unless, under the law applicable to the child, majority is attained

earlier. 2 Under Juvenile Justice (Care and Protection of Children) Act, 2000 the age is

fixed at 18 years. Thus, there is no uniform fixation of the age of a child.

Unfortunately, the children in India are subjected to various forms of abuse.

National Study on Child Abuse recorded its findings very exhaustively on various

forms of abuse of children. They are child labour, physical abuse, emotional abuse,

substantial abuse, Girl child neglect, sexual abuse etc. 3

Socio-economic conditions prevailing in the society are strongly responsible

for the abuse of child in different forms. High literacy and low literacy rate, equally

contribute to the problem of child abuse. Among the various forms of abuse of

children it would be more pertinent and relevant to focus on child labour. Child labour

2 Ibid.

3 Supra, chapter - 3

410

is a abuse and exploitation of children and children pre-maturely leading an adult like

life. They receive low wages and work for long hours under conditions that are likely

to damage their health as well as physical and mental development. According to a

National Study on Abuse of Children, out of 12,447 children, 19.70% are found to be

at work. Only 17% of working children are paid for their work. 4 Thus, child labour is

being largely underpaid, overworked and exploited.

“Child Labour” is not a phenomenon or feature peculiar to India. This has been

there all over the world. The pathetic conditions of a child forced to labour for his

employer described by Charles Dickens in his well known novel ‘Nicholas Nickleby’. 5

The concept of child labour is complex in its nature. It is very difficult to define and

give a valid definition of child labour. But International bodies, like UNICEF, ILO,

Research Groups, had made their best endeavour to define the concept of child labour

in a more logical manner based on time and space factor.

Taking in to consideration of consequences of child lbaour, the ILO has

provided a comprehensive definition. “Child Labour includes Children prematurely

leading adult lives working long hours for low wages under conditions damaging to

their health and to their physical and mental development , some times separate from

their families, frequently deprived of meaningful educational and training

opportunities that could open up for them a better future”. 6

4 Ibid.

5 A Sriram Babu V. The Chief Secretary of the Government of Karnataka and others cited in the

Child Labour (Prohibition and Regulation) Act 1986, 4 th edn, Bangalore: Karnataka Law Journal

Publication, 2010, p.89. 6 Supra, chapter 4.

411

In this context, child work and child labour often used synonymously, but have

different connotations and understanding. All work is not bad for children because,

some light work properly structured and phased is not child labour. 7 This implies that

work which does not detract from other essential activities for children such as

leisure, play and education are not child labour. ‘Child labour’, therefore, is the work

which involves some degree of exploitation, namely, physical, mental, economic and

social and therefore implies the health and development of children. Thus, child

labour is a subset of child work which implies that “all child labour can be termed as

child work but all child work cannot be child labour”. Thus, there is a gap between

two concepts, although, both appears to be one and the same, when it is investigated

forensically difference can be made out.

Children work in difficult forms/sectors, namely in the agrarian sector,

industrial sector and service sector. There are various factors responsible for leading

to child labour.

Child labour is a complex economic problem. In a country where millions of

children go to bed hungry, without having a single full meal of the day, total

elimination of child labour by mere legal recourse can never be said to be a practical

proposal. It may suppress the malaise but cannot cure it. Samuel Johnson opined that,

“Poverty is a great enemy to human happiness; it certainly destroys liberty, and it

makes some virtues impracticable and others extremely difficult”. Children thus

become instrument to augment family income and are seen as a means to alleviate

7 Ibid.

412

poverty. Thus, there is vital link between poverty and child labour. Weak and tardy

enforcement of the child labour legislation and defective legislation and polices also

contribute more for the incidence of child labour.

Thus, the phenomenon of child labour is multi-dimensional complex problem

and deep-rooted in the socio-economic fabric of society. So it may not be wise to rely

on one single approach to deal with it. So a comprehensive integrated approach is

required to tackle and combat the problem of child labour.

The international community has shown its concerns about the problem of

human rights in general and child labour in particular by adopting a number of

instruments. There were two Pre-United Nations Instruments, namely the Geneva

Declaration of 1924 which provides that , the child must be protected against every

form of exploitation and the U.N. Charter 1945 and Human Rights focussued on

the dignity and worth of the human being which includes children . In the United

Nations Instruments, the United Declaration of Human Rights,1948 under its Article

25(2) says that “Motherhood and Childhood” are entitled to special care and

assistance. All children whether born in, or out of wedlock shall enjoy the same

social protection. The United Nations Declaration of the Rights of the Child , 1959

was indeed a very important event as regards the international recognition of right

of the child. International Covenant on Economic, Social and Cultural Rights, 1966

provides that children and young persons should be protected from economic and

413

social exploitation. The International Covenants on Civil and Political Rights, 1966 8

under its Article 24 stated that, every possible social and economic measures should

be undertaken to prevent forced labour and prostitution.

The United Nations Convention on the Rights of the Child,1989 is a most

important human rights document focusing and concentrating on children . The

Convention contains 54 Articles and it provides Civil , Political, Social , Economic

and Cultural Rights to every child, and out of 54 Articles 41 related to the rights

of children. These rights are the Right to Protection, the Right to Development, the

Right to Participation and the Right to Survival. Article 32 prohibits practice of child

labour and recognizes the rights of the child to (i) be protected from economic

exploitation and performing any work i.e. likely to be hazardous; or (ii) interfere

with his education ; or (iii) be harmful to the child’s health or physical, mental,

spiritual , moral or social development. 9

World Conference on Human Rights : The Vienna Declaration and

Programme of Action,1993 reiterates the principle of “First Call for Children” and

addressed to combat exploitation and abuse of children and their root causes .

There are specialized agencies of United Nations for the protection of the

child. It is the policy and objective of International Labour Organisation to abolish

child labour. It’s objective based on the Convention “Childhood should be

consecrated not to work but to education and development, that child labour often

8 Supra, chapter -6

9 Ibid.

414

Jeopardizes children’s possibilities of becoming productive adults and that child

labour is not inevitable its elimination is possible when the political will exists”.

International Labour Organization is committed to the abolition of the worst

forms of child labour and gradually other forms also. This is the first child labour

convention, which prohibited, the work of children under the age of fourteen in

industrial establishments. The protection of child against exploitation in employment

is one of the major concerns of this Convention. It has moved totally 19 Conventions.

International Labour Organisation’s Worst Forms of Child Labour Convention,

1999 (No.182), Minimum Age Convention,1973 (No.138), Minimum Age

Recommendation,1973 ( No.146) and International Programme for the Elimination

of the Child Labour (IPEC) .

Thus, in the Specialized Agencies of the United Nations, International Labour

Organization plays a vital role and directly committed for elimination of child labour.

Apart from ILO, there are other specialized agencies like United Nations Educational,

Scientific and Cultural Organization, United Nations Children’s Emergency Fund

(UNICEF), South Asian Association of Regional Countries (SAARC) and World

Health Organization (WHO) etc.

Thus, International Instruments provides codification of children rights into

one international document and recognizing aspirations which mankind has for its

children. It can be said that, Conventions and Declarations make provisions and set

high aspirations. But the state parties face practical difficulties in implementation due

to socio-economic and cultural and political systems. There are no implementing

415

provisions either in the conventions or in declarations. There is no responsibility and

accountability upon the state parties for their acts and omissions 10

A comparative analysis of the problem of child labour which exists in different

countries has been made. In United States of America there are various Acts , like

Fair Labour on Standard Act, 1938 ( FLASA) and which was amended in 1966, still

the children work in dangerous industries in United States.

The problem of child labour also exists in Russia. The state has shown its

concern by curbing female child labour working for more than 8-10 hours. Soviet

State had taken various steps to protect its women and children by legislations. The

problem of child labour exists in China in different forms and age groups. The history

of child labour in this country parallels the development of public education system.

China has evolved the education policy in order to combat child labour. It had made

sincere efforts to reduce the incidence of child labour and formulated elimination

strategies. In South Africa child labour was prevailing in the form of socialization,

acculturation. In this country child labour distinguished between economic and non

economic activities. In South Africa Schools were not fully supported by Government

funds. Families must pay a fee for their children to attend school and Government of

this country has recognized a need for comprehensive approach to combat child

labour. 11

By and large child labour problem was prevailing in various countries of

South Asia namely, Bangladesh, Thailand, Philippines, Nepal, Pakistan, Srilanka and

10

Ibid. 11

Supra, chapter -7

416

Afghanistan. Thus, it is observed that the problem of child labour is a global

phenomenon which is found in both developed and developing nations.

The practice of child labour in India or in any country of the world is an age

old phenomenon. Since ancient time child labour existed in the Indian society in one

form or the other. During ancient time the child labourer were regarded as ‘child

slaves’ 12

. Tender aged children who were under eighteen by the custom treated them

as chattels. Kautilya was not in favour of employment of children. The practice of

child labour was existing in ancient India in the form of slavery. Thus children were

engaged in different occupations and even in agricultural sector and exploited by

landlords.

During the medieval period child labour was prevailing in India and working

as slaves. Landless labourers used their children to help in their economic activities

and children were required to help them in rendering their traditional crafts or family

occupations at the young age. Children were frequently mortgaged and sold like

movable properties. 13

The rulers made no effort to abolish this practice.

In the modern era, during British rule significant changes were brought by the

then Government. The first protective Child Labour Act was enacted in 1881, this was

known as Indian Factories Act, 1881. During the Modern era, before independence

efforts had been made by bringing various legislations for elimination of child labour.

12

Supra, chapter -5 13

Ibid.

417

The history of child labour law found little improvement under the Indian

Factories (Amendment) Act, 1922. According to the mandate of ILO Convention on

the minimum age, for admission for children into employment, hours of work and

night work of young persons and women.

At present there are 14 legislations to control and regulate child labour in India.

Children (Pledging of Labour) Act, 1933 was the first statutory enactment dealing

with child labour.

Then, the Employment of Children Act, 1938 was enacted which had been in

force till repealed and replaced by Child Labour (Prohibition and Regulation) Act,

1986. The main object of the Act was to prevent the employment of children under

the age of 14 years to work in occupations and curbed the exploitation of the Child

Labour. One of the drawbacks of the Act was it had not provided any provision with

regard to the health, safety, medical examination and welfare of children. This Act

was amended as many as five times during the year 1939, 1948, 1949, 1951 and 1978

only to ameliorate working conditions of children.

The Factories Act, 1948 raised minimum age of employment of children in

factories to fourteen years and section 67 of the Act enacts an absolute prohibition of

employment of child in any factory. The Minimum Wages Act, 1948 defines a child

as a person below 15 years and it provides for minimum wages for children and

apprentices. The Plantation of Labour Act, 1951 prohibited the employment of

children under 12 years in plantations and now by amendments under the provisions

of Child Labour (Prohibition and Regulation ) Act 1986, age of the child has been

418

increased to 14 years. The Merchant Shipping Act 1958 prohibits children under 15 to

be engaged to work in any capacity in any ship, except in certain specified cases.

Again the Motor Transport Workers Act, 1961 prohibits the employment of children

who are less than 15 years in any motor transport undertaking. In the same year the

Apprentices Act 1961 was enacted which prohibits the apprenticeship / training of a

person of less than 14 years. The Beedi and Cigar Workers ( Conditions of

Employment ) Act, 1966 prohibits (a) the employment of children under fourteen

year in any industrial premises manufacturing beedies or cigars and (b) persons

between fourteen and eighteen years from working at night between 7 pm and 6 am.

Article 24 of Constitution prohibits employment of children below 14 years in

factories, mines and in any other hazardous employment. In order to fulfill the

constitutional mandate after 36 years of independence and to respond to the National

Policy for Children 1974, Government has enacted Child Labour (Prohibition and

Regulation) Act, 1986 which prohibits the employment of children below 14 years

and imposes stringent punishment in cases of violation of the Act. The Act suffers

from some serious short comings. They are, the Act is contradicting in its goals, as it

provides for both prohibition and regulation of Child Labour. There is controversy

relating to the age of the child, misuse of proviso annexed to section 3 of the Act,

absence of any measures for rehabilitation of the child, absence of addressing

children who are working in large scale in agricultural sector ( farm-lands ) , and

policy perspectives relating to children and childhood are confused. Therefore, there

419

is an immediate need for amendment of the Act, so as to bring it on par with the

international standards laid down in the U.N. Convention on the Rights of the Child.

The debate about whether child labour should be banned or regulated is not

new. It surfaced in 1985 when the Govt. of India claimed that “Child labour was a

harsh reality” 14

and found it more prudent to regulate rather than ban it. The Child

Labour Act 1986 is an Act without teeth and innumerable loop holes. It does not

cover children working in agriculture. Today the largest employers of children are

farmers growing B.T. Cotton in State like Andhra Pradesh, Gujarat and Karnataka

where according to D.Venkateshwaralu’s recent study more than 2 lakhs children

below 14 work from day break to dusk in cross- pollination work. The Child Labour

Act, cannot effectively control child labour because (i) The Act is silent about welfare

of child labour (ii) and does not abolish child labour in all employments below certain

age.

Constitution contains several provisions under Article 15(3), Article 21, Article

24, Article 39(e) and (f) and Article 45 for preventing exploitation and protecting

children. In all the Five Years Plans progressive steps were taken by the Government

of India for the elimination of child labour. National Policy of Children, 1974 was

introduced and it recognized that, “The Nation’s children are supremely important

asset” and declared that “the nation is responsible for their nurture and solicitude”. In

February 1979 Government constituted 16 member committee on child labour under

the chairmanship of Shri M.S. Gurupadaswamy to look into the cause leading to and

14

Supra, chapter -8

420

the problems arising out of the employment of children in organized and unorganized

sectors. After a detailed study, Committee found that “Child Labour involves the use

of labour at its point of lowest productivity, hence it’s an inefficient utilization of

labour power. Child labour represents pre-mature expenditure rather than saving”.

Committee remarked that, child labour is economically unsound, psychologically

disastrous and physically as well as morally dangerous and harmful”. National Child

Labour Policy 1987 was introduced and implemented National Child Labour Projects

in 1988 for the rehabilitation of child labour. In the dawn of the new millennium,

Government of India brought various legislations and made amendments to the

existing laws. The Second National Commission on Labour, 2002 which has

recommended the repealing of the existing child labour (Prohibition and Regulation)

Act, 1986 and suggested a new model Act as child labour (Prohibition and

Rehabilitation) Act, “To prohibit Employment of children in all employments and to

regulate employment of children where permitted”.

Thus, right from the ancient period to present day, the problem of child labour

has been in existence and perpetuated in one or the other form, due to several socio-

economic and political factors. In the post Independence era, due to the human rights

orientation the child labour was considered abominable and various legal provisions

have been made to abolish / regulate child labour. New polices and new laws have

been adopted to deal with child labour. 15

15

Ibid.

421

The judiciary has played an important role in the protection of fundamental

rights of citizens in general and children in particular. Judicial interpretation and

activism had created new hope and aspiration among the citizens because of

tremendous growth of statutory intervention in the present era due to emergence of

liberalization, privatization and globalization and movement of protection of human

rights of children. Time and again judiciary has pronounced judgments for eliminating

the problems of child labour in India. With regard to this, Justice K. Subba Rao, a

former Chief Justice of India observed : “Social Justice must begin with children.

Unless a tender plant is properly tended and nourished, it has little chance of growing

in to a strong and useful tree. So, the first priority in the scale of social justice shall be

given to the welfare of children”.

In Rajangam v. State of Tamil Nadu 16

employment of children in beedi

manufacture was considered as violating the Beedi and Cigar Workers (Conditions of

Employment) Act, 1966 and the Child Labour (Regulation and Prohibition) Act,

1986.The Court observed, “ Tobacco manufacturing has indeed health hazards. Child

labour in this trade should therefore be prohibited as far as possible and employment

of child labour should be stopped either immediately or in a phased manner”.

The Supreme Court has directed the state government in M.C. Mehta v. State of

Tamil Nadu 17

to enforce the statutory requirements of the Factories Act for providing

16

(1992) 1 SCC 221; 1992 SCC (L & S) 105 17

AIR 1991,SC 417

422

recreational facilities and Medical aid to the workers of Match Factory at Sivakasi. 18

It is also been suggested that every employee working in this factory should be

brought under a group of insurance scheme. 19

There is plethora of cases, 20

where in judiciary has made significant

contribution to the cause of child workers. The Court has given new dimension to

several areas, such as locus standi, minimum wages, and employment of children

and gave decisions which deal with the payment of minimum wages to the children

and protection of their fundamental rights and sexual exploitation of children in

hazardous occupations which reflect the judicial creativity in the field of the welfare

of the children including the child workers.

The Judicial mandates clearly demonstrate that Right to Education is necessary

for the proper flowering of the children and their personality. The Supreme Court of

India in J.P.Unnikrishanan v. State of Andhra Pradesh 21

declared that, up to secondary

education every child has fundamental right to education. Similarly in a number of

cases the Supreme Court emphasized the importance of education for the children. 22

The verdict of the Supreme Court and pressure built by child rights

organization culminated in the amendment of the Constitution in 2003. In pursuance

of this the Right to Education Act was passed in 2009. The Right to Education Act is

18

See M.C. Mehta v. State of Tamil Nadu, AIR 1996 ( JT, 1996 (II) SC 685) 19

A sum of Rs. 50,000/- per children 20

M.C. Mehta v. Union of India, Salal Hydro Project v. Jammu & Kashmir, Laxmikanth v. Union of

India, Bandhua Mukti Morcha v. Union of India and M.C. Mehta v. State of Tamil Nadu, Asiad

workers case. 21

AIR 1993, SC 2178 22

Supra, chapter 8

423

the first legislation in the world that puts the responsibility of ensuring enrollment,

attendance and completion, on the Government. The Government of India is

committed to ensuring that all children irrespective of gender and social category have

access to education. The 86 th

Amendment to the Constitution and the Right to

Education Act act as a tool to provide quality education to all our children. This Act

serves as building block to ensure that every child has his or her right (as an

entitlement) to get a quality elementary education, and that the state, with the help of

families and communities, fulfils this obligation.

Non Governmental Organizations play a very vital and significant role in the

task of elimination of child labour. NGOs work at grass root level, they will have an

intense knowledge and experience about day to day problem. It is the NGOs which

can identify child labourers working in their area and understand the causes and

factors pushing to the problem of child labour by their survey work. Then working

children are successfully rehabilitated in NGOs run child labour schools and

mainstreamed. Today, , several NGOs, across the nation and within Karnataka, are

working relentlessly for the prevention and elimination of child labour. Global March

Against Child Labour at Delhi, Butterflies at Delhi, M.V. Foundation at Andhra

Pradesh, and Concerned for Working Children (CWC) in Karnataka, Child India

Foundation (CIF) Childline are working as NGOs for the cause of elimination of child

labour and rendering valuable services to the community.

424

From the analysis and interpretation of data all the hypotheses of the study

have been proved and confirmed. 23

Lastly, it may be concluded that, in India large number of children are working

as child labourers due to various socio-economic factors. Poverty, illiteracy,

ignorance of people are the root cause for the prevalence of child labour. Though

there is a plethora of laws dealing with problem of child labour due to their faulty

implementation by the law enforcement agencies child labour practice is far from

eradication.

11.2 Suggestions

1. Constitutional Amendment: Art 24 of the Constitution should be amended as

below:

“No child below the age of fourteen years shall be employed to work in any

factory or mine or engaged in any other employment”.

2. The present title of Child Labour (Prohibition and Regulation) Act, 1986 should

be amended as Child Labour (Prohibition and Rehabilitation) Act, so that more

focus should be given to rehabilitation rather than regulation.

3. Proviso annexed to section 3 of Child Labour (Prohibition and Regulation) Act,

1986 should be amended to prevent the misuse of this provision by employers

under the heading of family occupations and no exceptions should be provided.

Section 3 of the Act, should be amended as, “it shall be presumed that occupier is

23

See for hypothesis chapter-1.

425

also the employer for the purpose of the Act and the onus to prove that the child is

a member of his or her family would rest on the occupier”.

4. Distinction made between Part-A and B Schedules annexed to section 3 of the

Child Labour (Prohibition and Regulation) Act, 1986 shall be removed, as both

Schedules namely, occupations and processes, are equally hazardous to the health

of children. Therefore prohibition to employ a child should exist in both.

5. Under section 9 of the Child Labour (Prohibition and Regulation) Act, 1986, it

should be made mandatory that every occupier after establishment should send a

notice to the Inspector containing the information regarding the employment of a

child, either in the affirmative or in the negative, annually.

6. The age of the child provided under Child Labour (Prohibition and Regulation)

Act, 1986 i.e., 14 years should be enhanced to 18 years so as to bring it on par

with United Nations Convention on the Rights of the Child, 1989.

7. The Advisory Function of the Technical Advisory Committee under section 5(1)

of the Child Labour (Prohibition and Regulation) Act, 1986 should be expanded so

that it shall receive petitions from individuals etc, for addition of occupations and

processes to the Schedule.

8. The punishment for violation under section 14(3) of Child Labour (Prohibition and

Regulation) Act, 1986 shall be enhanced to three months simple imprisonment or

fine which may extend to fifty thousand rupees or with both.

426

9. In Section 16 of Child Labour (Prohibition and Regulation) Act, 1986 a time limit

from Six months to One year should be fixed for the disposal of the case so that,

the aggrieved party may get relief on time.

10. Government of India should ratify the Convention No.182 and Recommendation

No.190 which deal with the “Prohibition and Immediate Action for the

Elimination of the Worst Form of Child Labour”. The Convention was adopted in

1999 but the Government has not yet ratified it.

11. The Employment of children in any other employment including Agricultural

/Farm Sector should be made a cognizable offence, non- bailable and non-

compoundable.

12. A separate and independent body should be constituted under Labour Ministry at

Centre, State and District level for monitoring the affairs of child labourers after

14 years who were rehabilitated and mainstreamed.

13. Every State Government shall frame Rules under the Right to Education Act, 2009

immediately for the proper implementation of the provisions of the Act.

14. Laws on child labour and Education should be implemented in a mutually

supportive way.

15. The Judiciary should be more sensitive in dealing with child labour cases. The

general rule of ‘benefit of doubt’ cannot be given to the offending employers.

When guilt is proved, offending employer should be punished with imprisonment

and not with fine. In punishment policy, sentence of imprisonment should be made

427

a general rule and imposing fine should be an exception. This deters the

employers. Further there is a need to increase the conviction rate.

16. Government should encourage the NGOs for elimination of child labour by

granting proper budget periodically and accountability should be fixed on NGOs

to ensure that the funds are utilized for the purpose for which it is given.

17. To deal with apathy and indifference on the part of the law enforcing agencies in

the discharge of their duties, there is need to conduct periodical orientation and

training programmes to sensitize them adequately.

18. It is suggested to give more focus on implementation and enforcement of child

labour laws and other laws meant for the protection of the children.

It is humbly submitted that, if all the above suggestions are implemented, the

menace of child labour can be effectively tackled and eventually it can be eradicated.