ESSENTIALS FOR A POLICY STATEMENT*
FOR THE LEGISLATION PROHIBITING CHILD LABOUR UPTO 18 YEARS
IN ALL FORMS OF EMPLOYMENT
Repealing Child Labour (Prohibition and Regulation) Act 1986
- Drafting a Comprehensive Policy document towards a Constitutional Amendment to Article 24 which would make it a Fundamental Right and Legislation prohibiting Child labour upto 18 years for every child (no exemptions) that details the conditions of Child Labour and the classification of Atrocities of children engaged in work and measures for prohibition of child labour upto 18 years in all forms of employment.
- Why all children upto 18 yrs engaged in employment in all forms should be prohibited (Objects and Reasons)
- Employment of children in all forms upto 18 years is a crime and must be treated as a Cognizable Offence.
- Protection, development, Justice and Equity rights as the basis for a new law that repeals CLPRA, advocates an amendment to the Right to Free and Compulsory Education for all children 6 to 18 years to be provided by the state sanction prohibition of child labour upto 18 years in all forms of employment or engagement of work and make no distinction between hazardous and non-hazardous forms of child labour.
- Definitions regarding Child Labour, children engaged in employment and employer are very crucial and must include home based and family based employment of children, children not in school and self-employed children. Necessity for defining establishment in the legislation can be very limiting and hence must be reexamined
- Need a definition and a Chapter V which details employment of a child or a child engaged in employment upto 18 years classified as offences of atrocities (similar to atrocities with penalties listed in Sec.3 (1) and (2) of the SC’s and ST’s (PoA) Act) and strengthening penalties for those employing children and punishment for neglect of duties of all those being a public servant (similar to Sec.4 of the SC’s and ST’s (PoA) Act).
- The need for a separate chapter and a Position Note on Constitutional Fundamental Rights Chapter Legislation to Right to Free, Compulsory, Equitable and Quality Education upto 18 years including Right to early childhood care, learning and development (for every child in every section of a class and all systems (Boards) from early childhood care upto Higher Secondary education). This rights needs to be guaranteed in the definition of Child labour where any engagement of children upto 18 years should be treated as denial of education. The need for a chapter on the fundamental right to education and linkage of Right to Education and prohibition of child labour upto18 years is essential.
- Analysis of Article 32 of UNCRC read together with Article 14, 19, 24, 21, 21(A) and 39(f) of the Constitution and MC Mehta (vs) State of Tamil Nadu will detail the jurisprudence that the Constitution of India illegalises employment of children. The need to build this argument or campaign for amendments to the Constitution prohibiting child employment upto 18 years namely Article 24 & 21A.
- Contradiction in other laws / conflicting interest in different legislation need to be detailed and require amendments repealing of those particular definitions and sections and amendment to the Constitution which limit the prohibition of employment upto 14 yrs (Article 24) and Right To Education upto 14 years (Article 21A). These changes are necessary so as to bring into consonance the prohibition of all children engaged in employment upto 18 years in all forms and make these laws serve the best interests of the child.
- Duties / responsibilities of the State
- Besides the Employer, the State should be principally liable for all employment of children upto 18 years and for punishment for offences of atrocities while engaged in employment.
- This has to be focused strongly in this law. The onus for ensuring speedy trial and stringent penalties including, in certain cases imprisonment in a time bound manner must also be on the State.
- Rights of children engaged in employment and denied education for the interim period upto notification of act should be detailed in the Policy and Law.
- Mechanisms for Rescue, Rehabilitation, Compensation, Restitution and Reparation should be detailed in the Policy and Law with appropriate authority responsible. Rescue (victimisation) of child labourers by bringing them under Juvenile Justice systems should be avoided.
- Rights of Child in Employment once prohibition upto 18 years is notified as an Act should be specifically detailed in the Policy and Law.
- The Role of various authorities responsible for prohibition of child labour upto 18 years in all forms and those responsible for education, rehabilitation, compensation, reparation for wrongs, restitution, restoration of child hood, etc., The Specific role of local government must also be detailed.
- The Child Labour Prohibition Act can be notified on different dates for different sections but must be fully notified within a maximum period of 180 days from the date of the Act being passed by both houses of the Parliament. The most important sections (Prohibition of all children engaged in employment upto 18 yrs and penalties for offences for atrocities against employers / occupiers continuing to employ children even after it is prohibited) will come into force on the day the Act is passed by Parliament. This is to allow the State to set in place certain mechanisms, authorities and institutions necessary once prohibition of children upto 18 years is enacted by Parliament (A similar staggered enforcement of an enactment can be learn from the Right to Information Act 2005).
- Enforcement authorities under other Legislations (eg. Bonded Labour (Abolition) Act, Immoral Prevention of Trafficking Act, etc…) which laws when amended will prohibit child labour upto 18 yrs and as per the definitions in the alternative Child Labour Prohibition law 2014 should be involved with enforcement under their respective laws. The enforcement authorities empowered under the Child labour Prohibition Act 2014 (upto 18 years) will be the sole authorities for enforcement under this law to prohibit child labour.
- Civil Society Organisations or individuals to be empowered to initiate prosecution / complaints before magistrates for all forms of employment of child upto 18 years without going through the traditional prosecuting persons like Factories Inspector, and without compulsion of sanction from the State.
- The ILO Convention 138 on Minimum Age which the Government of India must be made to ratify should also be advocated for defining the minimum age for entering into employment as 18 years in all forms of employment (without exceptions). This commitment to ratify this convention and bring this amendment to age of employment should form an essential part on the policy for the prohibition of child labour. Secondly the ILO Convention 182 on worst forms of Child labour which is also expected to be ratified is not acceptable and must be resisted.
- The policy statement should declare that it is essential for the Government of India and each State Government must make available robust data on in all forms of employment of children upto 18 years for easy public access on biannual basis. All data on child labour should be made available on the website, under Right to Information of Governments and concerned departments and annual statements by the census of India, NSS data, Education data, etc.,
- The Policy note must also present scientific arguments from the perspective of Human Development Index compared to other development index of other countries which will show the qualitatively lower indices for India compared to other South Asian countries. The Prohibition of Child labour is closely linked with a policy frame work of sustainable development that is in consonance or better than the Human Development Index.
- The policy must highlight the specific concerns of children of families and communities excluded migrant and Internally Displaced Persons, victims of floods, famines, riots (natural and man-made disasters) and also victims of disabilities, Scheduled Castes and Scheduled Tribes, Affected and Infected of HIV Aids, Transgender, etc.,
* Finalised for a Consultation held on19th December 2011 at Chennai
jointly organised by
Human Rights Advocacy and Research Foundation and National Secretariat,
Campaign Against Child Labour (CACL).