The Child Labour (Prohibition And Regulation) Amendment Act, 2016. Embracing The Reality? Or Paving The Way For Further Exploitation? A Critique

By: Rhea Ghanshani

One would assume that the tabled amendment on child labour (hereinafter, ‘the Amendment’) during the monsoon session of Parliament the past year would be a ray of hope for those children who have been trying to escape the shambles of exploitation ever since they stepped foot into the world, but it turned out to be anything but.

The Amendment does not embody the principles of the Constitution[1], which happens to be the Grundnorm of our State that aims to be a Socialist one, and its framers must review the same. Since, our Constitution guarantees to its citizens the right to life[2] and the right against exploitation[3] among other fundamental rights.

There seem to be some glaring loopholes in the law that have the potential of pulling children into the vicious cycle of exploitation, after which their welfare, that includes their health, education, and recreation, is only a downward spiral from here on.

The Amendment that was passed by the Rajya Sabha on 19th July 2016 aims at prohibiting the employment of children in all occupations, and of adolescents in hazardous industries.[4] But, hazardous in this case implies only mines, inflammables, or explosives.[5] The remainder of which has conveniently been taken from the Factories Act of 1948, without keeping in mind that the Amendment being discussed herein is solely for the children whose health, needless to say, is more fragile than that of adults engaged in factories.

The Amendment also allows a child to help out in the family business, after school hours and on holidays, as long as it is not a hazardous process and does not affect the education or schedule when it comes to attending school of the child. He or she can also engage in any entertainment, media or sports related occupation.[6]

Reflecting upon the proviso clause added herein, which is a feeble attempt by the Legislature to mitigate or reduce, if not eradicate child labour in its true sense, one can certainly be perplexed with regards to the effects of children providing a helping hand to their family members in conducting their business.[7]

Is it the Legislature in fact accepting and thereby yielding to the Indian scenario, where the concept of a family business includes literally each and every family member who can walk, talk and work helping out, or is this the Legislature giving a green light to a practice that would in turn have negative ripple effects on the education of a child, since he or she would be too tired to go to school the next day, or lack concentration in classes owing to the fatigue caused by work and lack of sufficient sleep, thereby leading to lack of attendance in school, or even dropping out, in addition to the child’s grades being affected as they bear the brunt of the tiresome attempt of managing school on one hand and work on the other, all at such a young age. It can also be argued that this gives way to the family pressurising the child into not fulfilling his or her aspirations when it comes to their individual careers, and instead keeps them chained to the family business.

However, there are certain stringent provisions that are the need of the hour, such as the employer of a child being imprisoned for a period of 6 months to 2 years, or also being fined to the tune of Rupees 20,000 – 50,000, and the same applies to an adolescent being employed in a business dealing with any kind of hazardous products or processes. And, a repeat offender, that is if the offence is repeated the second time around, the punishment for the same is magnified, which would lead to the offender being imprisoned for a minimum period of 1, and maximum period of 3 years.[8]

Also, for an adolescent employed in a job dealing with hazardous substances, the parents shall also be held liable if it is a repeated offence, that is, exceeding once, and may also have to pay a fine to the extent of Rupees 10,000.[9]

A child who has been rescued from being exploited for labour, shall be rehabilitated as per the laws of the State that are currently in force, and there would be regular inspections conducted by persons appointed by the Central Government in places or factories where the employment of children is prohibited. But, is this provision in particular merely a rubber stamp, since there is no specification with respect to whom this search or inspection will be conducted by, and what the exact repercussions of non-compliance be, apart from the employer and/or parent(s) being held reliable and the child being rehabilitated, such as the measures that would have to be taken up by the Government to make sure that this practice is not repeated another time, or in a different location or factory engaged in a similar industry, or in a particular state across the country.[10]

This Amendment, therefore, has attempted to address the issue of child labour by adding provisions such as liability of parents and graver punishments for repeat offenders, so as to provide to the children complete protection. Not to forget, the rehabilitation of children that would be done, although the exact manner of the same has not been discussed or stated in the abovementioned amendment, and the inspections that an appointed person would carry out.

What must be kept in mind is, that the last mile has yet to be completed, also known as implementation. One can never truly fathom the effects of a certain thing, without first having seen it in action. Only time will now tell if this legislation, which could potentially be labelled as questionable, will prove to be exactly so, or will leave the critics shocked. However, at this stage, the latter seems highly unlikely.

[1] Constitution of India 1950, preamble.

[2] Constitution of India 1950, art 21.

[3] Constitution of India 1950, art 24.

[4] Child Labour (Prohibition and Regulation) Amendment Act 2016, s 2.

[5] Child Labour (Prohibition and Regulation) Amendment Act 2016, the schedule.

[6] Child Labour (Prohibition and Regulation) Amendment Act 2016, s 5.

[7] ibid.

[8] Child Labour (Prohibition and Regulation) Amendment Act 2016, s 18.

[9] ibid.

[10] Child Labour (Prohibition and Regulation) Amendment Act 2016, s 19.

(Rhea is currently a student at Kirit P. Mehta School of Law (SOL) of SVKM’s NMIMS, Mumbai)