Legislating childhood in India

The recent amendments to the Child Labour Act passed by the Cabinet last month allow for children below the age of 14 to work in non-hazardous industries or ‘family businesses’, so long as this does not affect their education. Response to the amendment has been mixed, with some activists calling for a total ban on child labour, while some suggest that the amendment is, at the very least, a step in the right direction. The real challenge however, lies in the law’s interpretation, as ‘hazardous’ and ‘family enterprises’ could become nebulous categories—easily distorted and loosely applied. The debate over the amendment also reflects what has become a major hurdle for policy-makers: how to define and legislate childhood itself.

The current amendment bans all forms of employment for children below the age of 14, but introduces a new category of ‘adolescents’ (aged 14-18), for which certain kinds of work are permissible. Further, children below the age of 14 are allowed to provide assistance in household-based work and family enterprises, but only outside school hours.

Steps forward

The Amendment moves forward from the previous Act in many regards. The Child Labour (Prohibition &Regulation) Act of 1986 prohibited hazardous work for children below the age of 14 in specific industries, and defined only 18 industries as hazardous. India’s ratification of the UN Convention on the Rights of the Child in 1992 and the reservation made regarding the gradual phasing out of child labour; along with the passing of the Right to Education Act in 2009 which guaranteed all children from the age of 6-14 the right to free and compulsory education; were the major impetus for reconsidering the 1986 Act. The amendment references the RTE, stating that education must take priority over any kind of child work. The emphasis on children’s education is a major step forward from the previous law; as is the near-total ban on child labour below the age of 14, as opposed to the previous ban limited to 16 ‘hazardous’ industries. However, activists have emphasizes that this is not enough.

Where the Amendment falters

Though defining specific industries in which child labour is expressly prohibited, areas in which child labour is permissible are not as clearly defined by the amendment—leaving large grey areas of potentially hazardous work in which adolescents may be employed. There is concern that ‘family enterprise’ will become a euphemism for household industries that are labour-intensive and possibly harmful. Current production models entail more parts of the production process are being sourced to households. Mint reports that 80% of child labour is in rural areas, and three out of four of these children work in cultivation or other home-based industries. Thus even apart from stages of industrial production outsourced to households, domestic work and ‘family work’ are often potentially harmful, and the legislation by expressly permitting child work in such spaces, is effectively legalizing certain forms of child labour; thus setting poor precedent, and potentially acting as an obstacle to further measures beyond the scope of the law. Conversely, ‘hazardous’ is a poor qualifier; if we consider that a child working cleaning tables at a restaurant is not technically doing ‘hazardous’ work, but will still be subject to exploitative labour relations. Even industries that are not hazardous can be highly exploitative and detrimental to a child’s development. As the founder of an organization which works with children trafficked for intergenerational prostitution points out, the qualifier of ‘family work’ becomes extremely complex and dangerous when applied to industries like nauch, nautanki, and cabaret—as "This amendment will give impunity to their traffickers, who will claim 'dancing' is a family enterprise."

The recommendations of the Parliamentary Committee that deliberated the 2012 Bill specifically emphasised that working after school hours is detrimental to the development of children and that children require the time after school for rest and leisure; and that work within homes cannot be left unlegislated and undefined. The text of the Parliamentary Committee’s report on the 2012 Amendment Bill reads:

A child… 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. (2013)

Thus the recent amendment directly contravenes this recommendation. How work after school and during holidays may affect a child’s development and education is not adequately addressed by the Act.

Further, the Committee also emphasizes the need to define ‘hazardous’ more clearly, and suggests that the definition in the bill has simply been replicated from the Factories Act:

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 nonhazardous occupation…. 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. (2013)

Defining and legislating childhood

The new amendment introduces a new category of minors—adolescents, aged 14-18—and permits certain types of non-hazardous employment for this group. What the controversy over this provision reflects, along with the debate about the recently amended Juvenile Justice Act, is how childhood itself is to be defined, and how the agency of adolescents is to be accounted for while simultaneously acknowledging their vulnerability.

The debate about legislating childhood is one that extends beyond the context of child labour and ranges from the question of the age of consent, to juvenile justice. The Child Labour Act Amendment attempts to navigate this complex territory by disaggregating the category of ‘child’ and acknowledging that those between the ages of 14-18 are at a different state of cognitive and social development. Yet precisely because of the ambiguity of child and adolescent agency, it becomes even more vital to leave no ambiguity about the terms and kinds of child and adolescent work, and the relations governing them. It is vital to keep in mind the fact that adolescents are often no less vulnerable than children.

Asha Bajpai points out that the very definition of a child is problematic in legal parlance. For the Indian legal system, age limits, which are formal structural limits that lay out a child’s developmental trajectory in the eyes of the law, themselves differ from law to law when it comes to defining who a child is[1]. The category of adolescents further complicates this plethora of differential age limits, and creates further ambiguity about the legal definition of childhood.

As Child Rights and You (CRY) points out, children are posited in discourse as ‘future citizens’, and their agency and rights are rarely acknowledged. In the ninth plan, the CRY report points out, the government announced a move from a welfare-based to a rights-based approach to child-related policies and planning, and in the contemporary context a development-based approach has come to the forefront; yet the difficulty in accounting for child agency and rights while simultaneously according minors protection from exploitation, is something policy struggles with.

The notion of children as citizens is emphasized in the UN Convention on Rights of the Child, as well as the Indian Constitution itself. The Constitution makes provisions of positive discrimination towards children. Though children are often not seen as full citizens, but as ‘semi-citizens’ (Cohen), the state must uphold its obligation to this section of the population and facilitate their full development. As Cohen points out, “Children are simultaneously assumed to be citizens – they hold passports and except in the rarest of cases receive at least one nationality at birth – and judged to be incapable of citizenship in that they cannot make the rational and informed decisions that characterize self-governance”. There is thus a need for the state to develop a more comprehensive definition of child citizenship, and move away from purely paternalistic policies. However, creating mechanisms that allow for child labour cannot be seen as a move in this direction—child agency cannot be conflated with child work.

Child labour: A social and economic reality

It is important to locate the social context in which child labour becomes possible, and for many families, a necessity. Children are often sent to work by their families out of financial necessity—and though some have criticized the amendment for exempting families from punishment for the first offence, the act does attempt to shift the onus of child labour more directly onto the employer, thus making the employer who hires children for cheap labour, and not potentially vulnerable families, the primary offender. However, the corollary to this is that often, the employer and the family might be the same. The incorporation of the category of ‘family businesses’ which has been left ambiguous is one of the major shortcomings of the bill—as it rests on the flawed assumption that these family businesses, and that family relations, will not be exploitative.

The state is not the only stakeholder in the welfare of a child, and societal norms and familial pressures play a governing role in a child’s development. Legislation for the prevention of child labour is imperative; but legal structures are often unable to transcend social realities. The ministry’s statements about accounting for the ‘socio-economic fabric’ of the country as a justification for allowing certain forms of child labour are deeply problematic and must be condemned; but the Amendment’s legalizing of certain kinds of children’s work reflects the harsh reality of current economic systems, of which child labour is an integral and often invisible part.

Beyond the provisions of this legislation lies an entire nexus of social and economic institutions that enable child labour and in many ways, depend upon it. Childline analyses Census data from 2010 to suggest that child labour accounts for over 11% of India’s workforce. Though from main workforce estimates alone it might appear that child labour is on the decline, census data on marginal workers reflects an increase in child marginal workers. When this data is collated and the total workforce data is obtained, it becomes clear that child labour even statistically, poses a significant problem.

Child labour thus accounts for a significant proportion of the country’s economic processes. While the Amendment reflects the reality of these statistics; instead of constructively engaging with the problem, it remains circumscribed by the sheer extent of its reach. Poverty of households and families, though a major factor accounting for child labour, must not be used as a justification and the state and legislation must take account of the structural causes of child labour and strive to eliminate them, rather than working around them; and the goal of complete elimination of child labour must not be compromised on.

Need for wider social reform

The Amendment’s flaws must point us also towards the need for wider social reform and engagement with generating awareness about children’s developmental needs. There is a pressing need for better rehabilitation provisions and more accountable rehabilitation mechanisms. As Farooqui writes, along with monitoring of the availability of schooling, dropout rates, and schooling infrastructure, “What we really need to demand are bigger, more tangible structures with respect to children. We need a robust child protection and welfare setup, effective implementation of child policies, augmented budgets for schemes for children, an impartial juvenile justice system, better reformation homes, trained and permanent staff.”

Though child labour cannot be tackled through a single amendment, setting up a wider network of policy reform in favour of children’s education and development, and tackling multiple interlinked factors which enable child labour with an overarching emphasis on child rights, could go a long way. There are presently around 250 legislations in India that pertain to children, and reform for consistency in age limits and definitions, mechanisms for accountability as well as rehabilitation must be undertaken across these legislations (Bajpai). As Asha Bapjai suggests, what is vital is “a move towards a therapeutic jurisprudence … increasing expenditure on child protection, and making child budgeting an essential component of the country’s planning and strategy for development.”

Sources:

Bajpai, Asha. ‘The Legislative and Institutional Framework for Protection of Children in India’. Available at
http://www.ihdindia.org/IHD-Unicefwp-PDF/IHD-UNICEF%20WP%20%205%20asha_bajpai.pdf

Child Rights and You (CRY). ‘Status Report on Child Rights in India'. Available at 
http://www.cry.org/resources/pdf/Status-Report-on-Child-Rights-2013.pdf

Childline India. ‘Child Labour: India’s Growth Story’. Available at
http://www.childlineindia.org.in/Child-Labour-India-growth-story.htm

Cohen, Elizabeth F. ‘Neither Seen Nor Heard: Children’s Citizenship in Contemporary Democracies’. Available at https://www.maxwell.syr.edu/uploadedFiles/faculty/psc/Neither%20Seen%20nor%20Heard.pdf

Farooqui, Sarah.  ‘The Government’s Child Labour Amendment Is Actually An Improvement, But It’s Insufficient’. Available at
 http://www.huffingtonpost.in/sarah-farooqui/amendment-to-child-labour_b_7281790.html

IBNLive. ‘Are we ready to protect our children from the spectre of Child Labour?’ Available at http://ibnlive.in.com/news/are-we-ready-to-protect-our-children-from-the-spectre-of-child-labour/545431-3.html

LiveMint. ’10 Alarming Statistics on Child Labour in India’. Available at http://www.livemint.com/Politics/ZPALzwgvOLhyMfxWsobcHM/10-alarming-statistics-on-child-labour-in-India.html

Mander, Harsh. ‘Why the children of the poor must not be allowed to work in family enterprises’. Available at
http://scroll.in/article/727812/why-the-children-of-the-poor-must-not-be-allowed-to-work-in-family-enterprises

Ministry of Labour and Employment. ‘Fortieth Report: The Child Labour (Prohibition And Regulation) Amendment Bill, 2012.’ Available at
 http://www.prsindia.org/uploads/media/Child%20Labour/SCR-child%20labour%20bill.pdf

Sehgal, Rashme. ‘Government set to send millions of children back into exploitative labour’. Available at
http://scroll.in/article/723107/government-set-to-send-millions-of-children-back-into-exploitative-labour

The Indian Express. ‘Cabinet Approves Amendment in Child Labour Law: Allows Children Below 14 to Work’ Available at http://indianexpress.com/article/india/india-others/cabinet-approves-amendment-in-child-labour-law-allows-children-below-14-to-work/

The New Indian Express . ‘Activists Write to Modi Against Child Labour Law Amendments’. Available at http://www.newindianexpress.com/nation/Activists-Write-to-Modi-Against-Child-Labour-Law-Amendments/2015/06/11/article2861203.ece