Comments on the Draft Child Labour (Prohibition and Regulation) Amendment Bill, 2012

Posted on July 18, 2014

The Concerned for Working Children, Karnataka

July 2014


We welcome the chance to comment on the Draft Child Labour (Prohibition and Regulation) Amendment Bill post the response of the Parliamentary Standing Committee on Labour. Below are listed some overarching issues that we have noted within the Bill:

a. Operative from a labour perspective instead of a child rights framework: The essential issue with the current positioning of the Child Labour Act and Bill remains that they are approached from the labour perspective instead of the child rights framework. Working from the child rights framework shifts how we approach children, not as recipients of protection from a parental State but instead as legitimate rights bearers. Holders of rights have a moral and legal entitlement that their rights are secured and it is then essential that those responsible for delivering on these rights are made accountable and responsive. The State is the principal duty bearer responsible and accountable to fulfilling these rights and this language needs to be reflected in the law related to child labour.

The heavy referencing to ILO Conventions and no mention of the UN CRC is reflective of the lopsided trend through the discussion on the Bill. Ideally, the framing of the law in itself should be under the mandate of the Ministry of Women and Child Development, yet considering this is not the case, the Ministry of Labour and Employment needs to shift its approach and address child labour concerns in spirit of the larger commitments to the best interests of the child made by India when it ratified the CRC.

b. Addressing the rights of the child indivisibly: Currently, the response to child labour as an issue spans several ministries, each of which sticks to its narrow mandate be it rescue, rehabilitation, education etc. The Parliamentary Committee highlights this fragmented approach, questions it, even tries to consolidate a larger mandate within the Bill which the Ministry refuses. This need for a consolidated approach flows from the argument that all human rights are indivisible, whether they are civil and political rights, such as the right to life, equality before the law and freedom of expression; economic, social and cultural rights, such as the rights to work, social security and education, or collective rights, such as the rights to development and self-determination, are indivisible, interrelated and interdependent. The improvement of one right facilitates advancement of the others. Likewise, the deprivation of one right adversely affects the others.

When strategising and responding to an issue such as child labour, it is not only the shift from the harmful workplace which should be the pre-occupation of the Ministry but all aspects which ensure that the best interests of the child are held first. To do this, the Law or Bill cannot be framed within the narrow margins of the mandate of the Ministry. Ministries have been separated along the lines of administrative conveniences, these cannot be reflected in the laws that are to respond to the complex social issues the Ministries are handling. A multi-sectoral system that responds to fulfilling rights of the child holistically has to be reflected in law.

c. Considering a more nuanced decentralised approach: Convergence of and coordination between the various departments of government is undoubtedly essential not just for addressing the issue of child labour but other social problems such as child marriages, child abuse and child headed households. It is vital that the child is perceived holistically and all attendant issues are addressed in a comprehensive manner. It is often the case that a child facing one problem such as child labour is also a subject of other economic and social ills and one cannot be mitigated without resolving the others. It is also true that children cannot be seen in isolation from their families and communities and the socio-economic and political deprivations they face are often the cause of the child’s predicament. Single point strategies seldom work and holistic solutions require to be designed. It is for these and many more reasons that convergence and coordination are not just critical but imperative. But this is not an easy or straight forward goal to attain, given the plethora of departments and their numerous schemes, the centralised nature of the State and the department-wise bifurcation of portfolios. With this regard we suggest the incorporation of a decentralised approach to dealing with child labour. At the level of a village (rural) or ward (urban) it is possible to bring about convergence even if the schemes required are scarce as local resources can be mobilised and community participation elicited.

d. A shift from ‘prohibition and regulation’ to a larger mandate including ‘prevention, development and training’: The Parliamentary Committee, in multiple spaces indicates the need for the above holistic approach towards child labour. The Ministry has rejected these proposals on the grounds that the Child Labour (Prohibition and Regulation) Act is not the appropriate vehicle for co-ordinated action on complex issues or on rescue and rehabilitation and shifts the onus to the Juvenile Justice (JJ) related act. This position of the Ministry is deeply problematic as child labourers were added to the JJ list of children in need of care and protection only in 2006. We argue that the JJ system is not conducive to responding holistically on the issue of child labour. In its current form, the JJ is a system which provisions safe spaces for children in an institutionalised manner and is sufficient only for short-term relief in extreme situations such as bonded labour. It has historically been the mandate for the child labour act to take full cognizance of the issue and respond to it holistically.

In 1985 we initiated the drafting of a national legislation on child labour. This was driven by the inputs from working children themselves who said ‘If the law does not acknowledge us, let us change the law’. They asked for a law that among other things would provide for their education as well as upgradation of their skills, for security for their families and for the development of their entire communities. The Child Labour (Employment, Regulation, Training and Development) Bill, 1985 that placed the best interests of working children at its center and emphasised the addressing of root cause of child labour, got mutilated during its passage through the cabinet. The result – the Child Labour Prohibition and Regulation Act 1986 that currently lacks depth, vision and the commitment to children’s rights. Considering that child labour remains unaddressed by the present forms of prohibition and regulation, the case for a holistic approach is well made.

e. Addressing demand and supply in a deeper manner: Child labour is an issue couched deeply in societal inequities and belief systems. Any response would require a re-thinking along several lines such as understanding how the entire families choicelessness and need for survival leads to situations where children are forced to work in harmful conditions. Hence, the law on child labour needs to be expansive and assimilate within itself measures to address all aspects of child labour on both the demand and the supply side. The current Law and Bill, both respond narrowly through punitive measures pointed at demand. Having rejected the idea of co-ordinated action and incorporating prevention structurally within the current Law or Bill, it remains unclear then how this Bill will help tackle the roots of the issues involved especially when it is taking the strong step of banning work for all children under 14.

f. Incorporation of the right to be heard: We appreciate the effort applied to the consultative process and hope that other ministries will take cognizance of such consultative practices. However, we would like to highlight that considering the fact that this Bill is about the well-being of children, children themselves have not been consulted in a structured manner either by the Committee or the Ministry (to the best of our knowledge). Considering this Bill comes at the heels of the National Children’s Policy 2013, it is of paramount importance that it fall in line with its spirit and give consequence to its guiding principles which recognises that ‘children’s views, especially those of girls, children from disadvantaged groups and marginalised communities, are to be heard in all matters affecting them, in particular judicial and administrative proceedings and interactions, and their views given due consideration in accordance with their age, maturity and evolving capacities‘. This is of importance also because as the UN Committee on the Rights of the Child has declared, in the general principles of the Convention on the Rights of the Child (CRC) the right of a child to be heard enshrined in Article 12 of the CRC is not only a right in itself, but should be considered in the interpretation and implementation of all other rights.It must, hence, be the underlying principle in the governance system that wishes to respond qualitatively to children’s needs.

g. On banning under 14 age group from work: We appreciate the commitment of upholding the idea that children should not be in spaces that negatively affect their growth and well-being. Yet the question we ask, takes us beyond the mere resistance to and negation of the idea that children work in difficult circumstances.

The ban approach in its actual current enactment implies that children are dragged out of their work spaces, caught by inspectors, pulled into vehicles and deposited in alien institutions without an explanation, often in ironic violation of their many rights. Bhima Sangha, a Union of Working Children, has in recent years been campaigning against the current method of ‘raid and rescue’ under the banner – do not exploit us in the name of protection. The result for the children is a sense of being ‘criminalised’ even as their parents/guardians are actually treated as ‘offenders’. These ‘raids and rescues’ which in the last few years have become the standard operating procedure (SOP) to deal with child labour, are often arbitrary with little understanding of how child labour as an issue is embedded in the larger social reality of  country where poverty is widespread and the minimum wage has been at a negligible level, living expenses can overwhelm a family, especially if parents are not able to work. This in fact leads to the far more dangerous situation of child work being ‘invisibilised’. Child workers are put in a legal blindspot where their work is prohibited and so they have very little defence if employers exploit them through long hours, physical or verbal abuse or refuse to pay a decent wage.

The question we insist on asking is – why do children work in difficult circumstances? For having applied ourselves to the strong position of viewing harmful work as illegal and immoral, the reality of children working in hazardous condition continues to remain. What an engagement with this question does, is flip the debate and build it on the terms of the child engaged in hazardous work. It brings the voice of children into the fold of governance. It asks for spaces where children may raise their voices without the expectation of sudden repercussions. It asks for research which builds on their experience.  It recognizes the ‘child’ not as a passive recipient of the States parental protection but as an active citizen who has knowledge of her/his circumstances and can apply it to their life constructively.

The current Bill through its provision of banning all work for under 14, indeed seems myopic considering its only striving is a interlinking with the right to education act.  It does not take into account that being in school is linked to several other important questions. We do however appreciate the argument of the Ministry that the clause regarding work at home needs to be added to ensure that misuse does not take place and that all work is not interpreted as bad.

h. On punishment to parents/ guardians: Our experience in the last 35 years has shown that children often work in hazardous conditions not due to parental consent as much as informed by the choicelessness of their socio-economic situations. When the question is of survival, any method is adopted by individuals. Being poor cannot be turned into a crime and hence treating parents/guardians as ‘offenders’ should be removed. Innumerable instances have shown us that children are often traumatised by the criminalisation of their parents/ guardians and are also deeply against such a practice. Instead, the state needs to recognise the important role it needs to play in ensuring access to decent livelihoods and conditions of work for adults and actively strive to take preventive measures in that direction.

i. An ‘apprenticeship’ approach to work for adolescents: We appreciate the recognition of the ‘adolescents’ category of above 14 as the needs specific to adolescents have otherwise not been targeted in a systematized manner. This approach matches the Apprentices Act, 1961 and the more recent Street Vendors (Protection of Livelihood and Regulation of Street Vending) Act, 2014. We endorse the view that these spaces where work is allowed, are regulated as recommended by the Parliamentary Committee. We do however feel that these are just the first steps towards provisioning qualitative alternatives for adolescents. We suggest that ‘work’ be interpreted as ‘apprenticeship’ with the connotation of ensuring that learning and growth in skills is incorporated in that space or provisioned through government interventions such as work specific training and skill building courses. It might be useful to view this alongside the Apprentices Act, 1961 which sets initial guidelines for such a purpose.

j. Complexities of determining hazardous work for adolescents: The Parliamentary Committee provides some insightful understanding on work for adolescents. It points out that just the mere nature of the industry in itself does not determine the nature of work. The nature of work is also informed by other aspects such as environment, hours, ability etc. This needs to especially be taken into account for this category as clearly there is a range of difference in terms of work that children can and cannot do within the age group of 14 to 18 which is very different from work undertaken by adults. The Ministry needs to revisit its current argument in light of these important aspects.