The author is vice-chancellor, West Bengal National University of Juridical Sciences
The indicative law appended to the report is a simple bill comprising just 19 sections and organized in five chapters. It exhibits sincerity of purpose and expects multiple agencies of the government involved in child welfare to work in unison with parents, non-governmental organizations and employers of child labour. It puts the mandate of Articles 15, 24, 39 and 45 of the Constitution of India into concrete legislative action by striking at the root cause of child labour in a constructive, pro-active and developmental perspective. In this sense, the proposal is a welcome departure from conventional approaches with little accountability and indifferent implementation.
On a rough estimate at least 50 million children of the age group 6 to 14 are not undergoing instruction in schools. The percentage of children outside the school system varies from state to state. Within the state there are variations from district to district about which there is now data available in many cases. What the labour commission has done is take a clear position which till now the NGOs had been canvassing, namely that “every child out of school is a child labourer or a potential child labourer”. In fact, section 2(iii) defines child labour as follows:“Child labour means any child not attending primary school or employed in any establishment, except the child mediated by parents at home for family activities or employed in employment or occupation in which a child is permitted to be employed under the Act”.
“Employment” means any work which establishes a master-servant relationship.
“Establishment” includes a shop, commercial establishment, workshop, farm, residential hotel, restaurant, eating house, theatre or any other place of public entertainment and any place where any trade, business, industry or agricultural process or operation is carried on.
The legislative intention under the above definitions of the bill conveys the clear message that it is imperative for eliminating child labour to provide for compulsory, primary education to every child under 14 years of age and the parents, state and the society have clear enforceable obligations in this regard. The rest of the bill is an attempt to evolve what the commission considers to be an appropriate machinery to enforce the principal message using the sanctions of civil and criminal laws.
What are the legally permissible forms of child labour in the commission’s report' First, helping parents in family activities at home before or after normal schooling. Second, employment in the presence of parents in any performing art for not more than four hours a day without jeopardizing the child’s education. Except in these two limited situations, if a child is involved in work it is child labour actionable under the bill. If so found, it is the duty of the enforcement inspector to refer the child to the education department for compulsory primary education and recover not less than Rs 10,000 from the employer for payment to the child labour welfare society. Failure to pay invites action by the collector under the revenue recovery proceedings. The employer can challenge the proceedings in court only if he deposits Rs 10,000 in respect of every child alleged to have been employed by him.
The affirmative action proposed by the bill is the guarantee of full-time educational opportunities offered to every child and expected to be organized by the district level child labour rehabilitation welfare society comprising of representatives of government departments concerned (labour, education, local bodies, social welfare), the NGOs and the trade unions. The collector is to be the chairperson of this organization registered under the Society Registration Act. It will have its own fund raised through the recovery of Rs 10,000 each from employers of child labourers and the fine realized from those punished under the law.
Only interests earned can be utilized by the society and that too for providing incentives for the education of children. In the case of parents punished under the law, the fine is only Rs 10 and if the offence is continued it is Rs 10 per month per child. It is interesting to note that the bill vests the authority to fine parents on panchayats in rural areas and on municipalities in urban areas.
Prosecution for offences under the act can be initiated through a complaint to a magistrate by any trade union, NGO or inspector appointed under the act. The onus to prove that the person employed is not a child is on the employer.
The labour commission report on the subject is indeed a great effort to eliminate child labour through universalization of elementary education, a constitutional directive long neglected. The question, however, is the adequacy of the machinery proposed to implement such a massive scheme across the country though innocuous looking district level child welfare societies and a few labour inspectors. The report seems to have overlooked a number of parallel systems legislated in the recent past directed towards the protection of rights generally and the welfare of children in particular. The tendency to create multiple bureaucracies in the conventional mould to do the same thing is, to say the least, against the spirit of contemporary times and may tend to be counter-productive in final results.
Admittedly, child labour is related to a variety of socio-economic and cultural factors and on the mindset of adults based on them. Ultimately, it is a question of fundamental rights of children and the future of the Indian democracy. If health and education are the key factors in child welfare, how come the labour department and trade unions are assigned the central responsibility for eradicating child labour' If access to justice for children is the key objective of the scheme, how come the legal services authority and the human rights commission are not even mentioned in the implementation machinery' How can a meaningful scheme for children be conceived outside the Juvenile Justice (Care and Protection of Children) Act, 2000'
The indicative law proposed by the labour commission is good in its intentions but is too simplistic to command credibility in implementation prospects. An example of this approach is the welfare fund to be generated through penalties and fines on offenders and the instruction that only the interest earned be spent on child labour rehabilitation activity.
On the other hand, the fund stipulated under the Juvenile Justice Act, again for the same purpose, is conceived in more flexible terms. Is there a need for two separate funds and two separate systems of administration when the beneficiaries are the same and the objectives similar' Again, is there any need for two separate bodies for child welfare at the district level managed by two different departments of the same government, one under the Juvenile Justice Act and another under the proposed bill when their constituency is the same' The Primary Eduation Act in different states also envisages a parallel bureaucracy, ostensibly aiming to achieve compulsory elementary education for every child, the strategic objective of the proposed child labour prohibition bill.
The labour commission seems to be unaware of the enormous work done, including constitutional amendment, by the human resources development ministry in mounting an appropriate scheme for compulsory primary education, treating it as a fundamental human right. The Saikia committee report on the subject had even identified certain physical and financial parameters to implement the right to education as a fundamental right.
In the circumstances, if as the commission believes, lack of education opportunities is the cause of child labour, would it not be logical and practical to put the responsibility of implementation on the human resources development ministry giving the labour department only a supportive role' It is unfortunate that the Juvenile Justice (Care and Protection of Children) Act, 2000, an omnibus legislation giving the dominant implementational role to the community and NGOs is being ignored and sectional laws with multiple bureaucracies are being considered with little or no money for implementation.
Child welfare is too big an agenda for the nation to be left to the care of few labour inspectors and welfare societies. Education and health being fundamental rights constitutionally guaranteed, they require greater commitment on the part of the administration at Central, state and local levels. What we need is a comprehensive child welfare code developed on the lines of the Juvenile Justice Act, 2002 and a duly empowered child rights authority at the Central and state levels to enforce the provisions of the code.
The child rights authority should not be yet another commission for advisory purposes only. It should have executive and judicial powers comparable to courts with constitutional jurisdiction for issuing orders and writs to protect the rights of children. Article 32 (3) of the Indian Constitution does empower Parliament to confer powers to issue writs for the protection of fundamental rights on any other court created by parliamentary law. Will it not be appropriate to use this provision to create a child rights authority at Central and state levels to provide justice to children who form one-third of the country’s population' Do we need the Supreme Court to declare that educational right of unfortunate children does involve state obligation to provide midday meals' Cannot the same be better accomplished by a duly empowered child rights authority working in unison with government and community agencies at the grass- roots level'
Finally, the role and responsibilities of panchayat raj institutions which are constitutional entities now to protect the rights of children in their respective jurisdictions have not been addressed adequately either by the Juvenile Justice Act or by the proposed bill. In the final analysis, protection of weaker sections including children should be the primary responsibility of local communities whose intervention can be most effective and timely.
The obligation of the state should be to ensure supply of adequate funds and technical knowhow to the local bodies to enable them to discharge their obligations in this regard. There is nothing better for children than to grow up in their respective communities under the care and supervision of their own parents and elders.