When the two houses of Parliament put their stamp on a few amendments to the Child Labour (Prohibition and Regulation) Act 1986 a couple of months ago, they also signed away the dignity of children and the status, childhood has gained in seven decades of the country's independence.
Some may argue that the amendments are just, as they prohibit the entry of children below the age of 14 in all occupations and processes so that they can enjoy their fundamental right to education, under the Right of Children to Free and Compulsory Education Act of 2009 (RTE). But, in the same breath they take away that very right by allowing children to work after school hours to help in 'family enterprises'.
Home based work can be anything -- on the fields, in the forest, work contracted to the household or caste-based occupation. And the definition of family has been extended to mother, father, brother, sister and father's brother and sister as well as mother's brothers and sister – in short the whole village could loosely be called 'uncle' and 'aunty'(read report from Gujarat).Hazardous jobs redefined
Similarly, a new section has been added in the legislation that prohibits employment of adolescents (defined as children between the ages 14 to 18) to work in hazardous industry. But, what is hazardous has been slashed from 83 kinds of jobs to just three -- mining, explosives, and occupations mentioned in the Factory Act. This means it leaves children open to employment in all other kind of hazardous industries including construction, asbestos, brick kilns, glass factories and garbage picking.
Apart from the debilitating psychological impact, many of these jobs can cause injuries, and ailments including tuberculosis, tetanus and parasitic diseases. Further, even the ones listed as hazardous in the new legislation can be removed, according to Section 4, at the discretion of government authorities without the consent of the Parliament.
Those who are aware of how reality unfolds on the ground say that these two changes in the legislation can take the children of our country backward by many centuries.
According to the 2001 census, there were 12.6 million child workers between the ages of five and 14 in India. In 2011, this number fell to 4.35 million. The National Sample Survey Office's survey of 2009-10 put the number at 4.98 million. Despite the fall, India has the highest incidence of adolescents in hazardous work in the world.Advocates ask for reversal
Since the amendments to the Act, prominent child protectors have pointed out the seriousness of the situation. Efforts online and offline through petitions are still continuing to reverse the legislation, but there has been no response from policy makers and no attempt to re-look at the issue.
Komal Ganotra, Director, Policy Advocacy & Research, Child Rights & You, feels that the Act is based on a flawed premise that work and education can go hand in hand for the child. “We have commonly observed that most children who take up economic roles work for long hours, have lower attendance in the school, are absent for long periods especially in case of season migrants leading to disinterest in education and drop out. Most of these children are not able to cope with studies, leave touch with the school and prefer to move ahead working full time.”
Ganotra gives the example of girls who support their families in bidi rolling. They have to work at least six to seven hours to roll a thousand bidis to earn a meagre income. After work, they do not have the time or inclination to pursue studies. Similarly, in jasmine plucking which is done in the early hours of the day, children start work around 4 am and are completely exhausted by school time. In families in Marathwada that migrate for the sugarcane harvest, children miss months of studies.
Thomas Chandy, CEO, Save the Children too had pointed out that the provision of allowing children in family enterprise can potentially be misused by employers. “While the Bill has provisions to penalise employers, it will prove to be difficult to monitor and track when child labour is hidden and in homes; or in ensuring that children are only working during vacations/after school.”
In an opinion piece, Shanta Sinha, former head of the National Commission for the Protection of Child Rights, had noted: “By justifying in law the participation of children in work before and after school hours, the Bill denies them the time and space to develop and grow as citizens with similar choices and opportunities that children from affluent families enjoy.”
Sanjay Gupta who runs Child Enhancement through Training and Action (Chetna) in Delhi pointed out that on every traffic junction the children who sell a whole host of Chinese products are doing so at the behest of their 'uncles' or 'aunts' who bring them from the village. “In most cases around ₹1,000 is sent back to their parents in the village.” He and others believe that with no identity documents needed to establish relationship, child trafficking that is rampant today will only increase.The amendments are also likely to make it worse for girls. “In 2007, India included domestic labour as a hazardous employment and this did lead to a curb in trafficking of girls for domestic labour. Now that the law allows domestic work below 14 years, this would bring a larger number of girls in the fold of employment,” Ganotra pointed out.Who will enforce?
While the amendments soft peddle helping the family, child rights activists say there is no way to distinguish help from work and no machinery to conduct inspections at the household level. The distinction between 'help' and 'work as help' is neither defined nor bound by any number of hours, nature of work. “In fact, the enforcement machinery (labour department) does not even have the mandate of inspecting households.”
In 2015, Save the Children found children working in Delhi’s garment industry, which is dominated by small, home-based enterprises. These formed the unorganised sector of the industry. Here children employed were poor, exposed to risks and hazards like loud noise, poor lighting and ventilation and sharp tools. “Children mostly work in households (87 per cent), they are poorly paid and receive no benefits and with 36 per cent of those working at home not paid at all,” found the report.
Another Save the Children-Young Lives India study suggested that 12-year-olds who spend three hours or more on household chores in a day are 70 per cent less likely to complete secondary education and 65.5 per cent of them dropped out from the schools.Safety and working children
Coming to the issue of safety of adolescent working children, by clubbing child work with adult work and the Factories Act 1948 in the new legislaton, there are no distinctions left.
“In the CLPRA 1986, the hazardous employments included 18 occupations and 66 processes listed in the schedule. This list was arrived at by recommendation of the Central Technical Advisory Committee over the years and various Supreme Court judgements. The new Act bans the employment of children in hazardous employment, but has reduced the dangerous jobs to three,” says Ganotra.
She and many others feel that aligning the Act with labour legislations rather than social legislation dilutes the spirit of the Act and adversely impacts children.
“It is important for the Ministry to note that Factories Act, and other labour legislations are regulatory acts while the Child Labour Act is protection oriented with larger social implications. The process of determining hazardous for children needs to be scientific and evidence-based .”Regulatory versus protection
That the amendments have not been thought through for their long term impact is obvious. While they are bound to increase child workers in the country, the enforcement machinery under the Act remains primarily with the labour inspector.
He in turn has many primary roles in regulating the massive unorganised industry which keeps children at the back seat.
Also, as Save the Children observed, “there is no cross-reference to other laws, like The Protection of Children from Sexual Offences (POCSO)Act 2012, RTE and Juvenile Justice Act, which are important for enforcement. CLPRA stands in isolation.”
Child labour decreased over a decade by a rate of 2.2 per cent per year which was felt to be slow and highly insufficient. But with the new norms in place there is a feeling that even this pace will not be maintained.
Keeping track of child labour is becoming difficult as over the years sectoral data has been decreasing. The 2001 Census released sectoral data from 18 hazardous occupations including gem cutting, construction, detergent making and brick kilns.
Whereas in 2011, the sectoral data was limited to three main sectors – agriculture, cultivator and household workers.
With data vanishing, keeping watch on child labour statistics may be a tough proposition.