Report and Recommendation of the Parliamentary Standing Committee on Child Labour Ammendment Act
The Committee notes that the short title of the Act is proposed to be amended as ‘The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986’ in view of the insertion of the proposed new definition of ‘adolescent’ but the Committee find that no provision has been made for the regulation of conditions of work of adolescents in the amended Act. The Committee note from the reply of the Ministry that the rules would be framed in this regard once the Amendment Bill is approved. According to the Statement of Objects and Reasons appended to the Amendment Bill, one of the objectives of the Bill is to ‘… prohibit employment of adolescents in hazardous occupations and processes and to regulate the conditions of services of adolescents…’, therefore, the Committee are of the opinion that regulation of the conditions of work of the adolescents including the criteria for their wages and settlement of disputes with regard to age of the child be made part of the Principal Act to reflect the intention of the Act and to minimize their exploitation. Even the Factories Act with which the Ministry has attempted to harmonise some of the provisions of the Act has a chapter dedicated to the ‘employment of the young persons’ in the principal Act. The Committee, therefore, recommend that the regulation of the working conditions of adolescents may be made part of the principal Act.
The Committee note from the reply of the Ministry that prohibition of employment of children in a subordinate relationship of work and labour includes those working in the Audio Visual entertainment industry. The Committee are also of the view that a lot of children/adolescents are working in Audio-Visual entertainment industry now-a-days and there have been cases where the children have not been able to bear the physical and mental trauma associated with rigorous routine. The Committee desire that appropriate rules may also be made for prohibition/regulation for children/adolescents working in Audio-Visual entertainment industry.
The Committee note that it is proposed to amend the definition of ‘child’ to provide that `child’ means a person who has not completed his fourteenth year of age or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009(RTE Act, 2009), whichever is more, and that a definition clause is proposed to be inserted which provides that ‘adolescent’ means a person who has completed his fourteenth year of age but has not completed his eighteenth year. The Committee observe that as per Section 3(1) of the RTE Act, 2009, every child of the age of 6-14 years shall have a right to free and compulsory education till the completion of elementary education and as per proviso to Section 4, a child admitted to elementary education shall be entitled to free education till completion of the elementary education even after fourteen years. The Committee also note from the submission made by the Secretary, Department of School Education and Literacy during the evidence that the ideal situation would have been to add ‘would have completed class 8’ in the definition of adolescent. Paragraph 3 of Article 2 of ILO Convention 138 ‘Minimum Age Convention, 1973’ also states that the minimum age for admission to employment or work shall not be less than the age of completion of compulsory schooling. The Committee are of the view that while aligning with the RTE Act, the Ministry has missed the spirit of the RTE Act. The focus of RTE act is to provide elementary education to all which should have been the criteria for determining a ‘adolescent’ in the present Bill too. The Committee are of the opinion that all children below 14 years should be in school and those who are above 14 and have missed school due to any reason should at least complete elementary education before being allowed to be employed in any occupation.
The Committee were concerned to note that various Acts have prescribed different age to define a ‘child’. The Committee note from the reply of Ministry of Labour & Employment that rehabilitation and social integration of children has been provided under The Juvenile Justice (Care and Protection of Children) Act, 2000 which is in the domain of Ministry of Women and Child Development. During evidence the Secretary, Ministry of Women and Child Development put forth the issue of having different age for definition of child in the Acts and policies being implemented by the Ministry of Women and Child Development, most notably, new National Policy for Children, 2013 where the age is given as 18 years. The Committee recommend that the proposed definitions be reviewed in view of the submission made by the Secretary, Department of School Education and Literacy and Secretary, Ministry of Women and Child Development by involving them in the consultation process.
The Committee note that it is proposed to substitute Section 3 of the principal Act to provide that no child shall be employed in any occupation but he/she can help his/her family after school hours or help in fields, home-based work, forest gathering or attend technical institutions during vacations. A child, however, cannot help where there is subordinate relationship of labour or works which are outsourced and carried out in home. The Committee are not able to understand as to how the Ministry proposes to keep a check on children working in their homes. The Ministry is itself providing loopholes by inserting this proviso since it would be very difficult to make out whether children are merely helping their parents or are working to supplement the family income. Further, allowing children to work after school is detrimental to their health as rest and recreation is important for fullest physical and mental development in the formative years besides adversely affecting their studies. The Committee feel that the schools where these children study should conduct sessions for their parents and tell them about the needs of the children. The Committee are of the view that there is no need to insert a provision to expressly allow some obvious things, in the Indian context, such as children helping their parents in domestic chores. The Committee recommend that this proviso may be deleted and the amended section be reframed to prohibit employment in all occupations where there is subordinate relationship of work and labour.
The Committee note that Section 3A is proposed to be inserted to prohibit employment of adolescents in any hazardous occupations and processes specified in the proposed schedule. In the schedule, it has been provided that ‘hazardous processes’ has the same meaning as assigned to it in the Factories Act. The hazardous processes given in Factories Act include those processes which may impair the health of the persons engaged or which may pollute the general environment. According to paragraph 1 of Article 3 of ILO Convention 138 i.e.’ Minimum Age Convention, 1973’ ‘The minimum age for admission to any type of employment or work which by its nature or the circumstances in which it is carried out is likely to jeopardise the health, safety or morals of young person shall not be less than 18 years’ The Committee feel that the Ministry have not made any efforts to identify hazardous occupations and have haphazardly copied from the Factories Act. The Committee observe that adolescents might be employed in industries which are apparently non-hazardous or works that are carried out at homes and thus not covered under the above schedule. For example, working as domestic helps does not fall under the category of hazardous occupations but in the case of adolescents it could turn out to be both hazardous and traumatic due to the treatment meted out to them by their employers. The exploitation and cruelty, in some cases, of the employers can affect health, safety and morals of the adolescents albeit working in a non-hazardous occupation. The Ministry has altogether ignored the provision of the ILO Convention 138 that such occupations should also include those which can jeopardize the safety and morals of young persons. The Committee, therefore, recommend that the meaning of hazardous processes be reviewed and widened to include all those processes that may jeopardize health, safety and morals of the adolescents.
The Committee note that it is proposed to amend section 14(1) to enhance punishment for employment or permitting any children to work in any occupations or processes and that parents and guardians of such children shall not be liable for punishment unless they permit such children for commercial purposes. The Committee are of the view that reasons for entry of children into employment include poverty, neglect, social and economic exploitation, trafficking, lack of schools and loss/incapacity of parents. All of these reasons indicate that children are forced to work due to various reasons with or without the consent of parents. The Committee are apprehensive of the scenario where parents are undergoing imprisonment for their act of permission and poor children are left alone to fend for themselves or poor parents resorting to unfair means to arrange rupees twenty thousand to be paid as fine. The Committee are of the view that in such cases the law should instead of punishing poor parents take a lenient view so that children do not have to work to fulfill their basic needs. The Supreme Court in its judgment in the case of M.C. Mehta had observed that providing an alternative source of income to the family is a pre requisite for the eradication of child labour and that employment should be provided to an adult in the family in lieu of a child working in a factory or mine or any other hazardous work. The Committee note from the reply of Ministry of Labour and Employment that a number of initiatives have been undertaken/schemes introduced by the Government to reduce the compulsion of the parents to put their children to work. The Committee are of the view that benefits of these initiatives/schemes have not percolated adequately. The Committee, therefore, recommend that the proviso be amended and lenient view may be taken in case of poor parents and those parents who have not been able to take benefits of any of the schemes. Repeated offenders may, however, be punished for allowing their children to work. The Committee are also of the opinion that the fine may be collected from the errant employers in all cases to be used for the rehabilitation of the rescued children in a fund christened as `The Child Welfare Fund’.
The Committee also note that further in cases where adolescents are employed in hazardous occupations, the punishment is proposed to be enhanced and the parents and guardians shall also be punished if they permit such adolescents to work in such occupations. The Committee feel that although the parents might have given permission to let their children to work in such occupations it is not necessary that the poor uneducated parents are in the know that these are hazardous occupations where adolescents are not supposed to work. The Committee are of the view that making employers liable is sufficient and there is a need for raising awareness about the hazardous occupations and their effects on adolescents. This can be done by providing elementary education to such parents out of `The Child Welfare Fund’. The Committee are of the opinion that the employers who exploit the adolescents and do not treat them properly should also be covered under the punishment clause.
The Committee note that a new section is proposed to be inserted to confer powers and impose duties on the District Magistrate to ensure that the provisions of the Act are properly carried out. The Committee find that District Magistrate is already overseeing the implementation of National Child Labour Project (NCLP) and this machinery has not yielded much which is evident from the Ministry’s own submission. The Committee feel that District Magistrate is already overburdened and hence he may not be able to spare adequate time to deal with the issues relating to child labour. The Committee feel that since Ministry of Labour and Employment does not have any effective mechanism to supervise the implementation of the provisions of the Act, the proposal to confer power and duties on the District Magistrate might not yield the desired results. The Committee find that the Bill is also silent in this regard. The Committee, therefore, recommend that Vigilance and Monitoring Committees headed by local MP’s may be constituted to review the implementation of not only The Child Labour (Prohibition & Regulation) Act but also, all the Labour Acts in the area every three months.
The Committee note that Section 17B is proposed to be inserted to empower the appropriate Government to make periodic inspection of the places at which the employment of children is prohibited and the hazardous occupation or processes are carried out. The Committee are of the view that since the employment of children is prohibited at all places as per the Amendment Bill, the instant provision should cover any place where employment of children is suspected and in case of adolescents, the appropriate Government may be empowered to make periodic inspection of the places at which the employment of adolescents is prohibited and the hazardous occupation or processes are carried out. The Committee feel that the Act should also provide for rehabilitation of children and adolescents rescued after such inspection or on any complaint filed under Section 16 of the Act.
The Committee note that trafficking of children from remote areas is done to put them in menial jobs which may include working as domestic helps, begging, prostitution and drug peddling. The Committee note from the reply of the Ministry of Labour & Employment that matters relating to trafficking and also the street children fall under the jurisdiction of Ministry and Women and Child Development and the matters relating to criminal offences against children are looked after by Ministry of Home Affairs. The Committee deplore the causal manner in which Ministry of Labour & Employment has replied on a sensitive issue. The Committee observe that the number of child beggars at the traffic signals, number of children selling small things like flowers, number of rag pickers and the number of children working as domestic helps has not decreased whichever Ministry is looking after the issues involved. Since these children are working, they are definitely child labour and need to be stopped and put in schools immediately. The Committee, therefore, recommend that all the Ministries involved bring about a comprehensive strategy to fight this menace and save the poor children from exploitation.
The Committee find that there is no provision for rescue and rehabilitation of children in the present Amendment Bill. The Committee note from the reply of the Ministry of Labour and Employment that rehabilitation of child into the fold of education is being implemented by the Ministry of Human Resource Development. The Ministry has also stated that since the National Child Labour Project hitherto an instrument for rehabilitation is not aligned with the RTE Act so it is being revamped. The Committee, however, feel that the Act itself should be comprehensive to cover all the aspects viz. identifying child labour or adolescents in hazardous occupations, rescuing them, rehabilitating and retaining them in schools till the completion of elementary education. The Committee are not sure whether the amendments would yield desired results since various Ministries are involved looking after different aspects and coordination between different departments is negligible or absent and passing the buck by each is a major excuse. The Committee recommend that instead of having a fragmented approach on the issue, the Government should bring a New Child Labour Policy and the machinery to implement laws, policies and projects should be specified therein.
New Delhi; DARA SINGH CHAUHAN,
11th December, 2013 CHAIRMAN,
20 Agrahayana, 1935 (Saka) STANDING
Report and Recommendation of the Parliamentary Standing Committee on Child Labour Ammendment Act