Labour Law
Labour Law
Labour Law
LABOUR LAW I
2nd YEAR, SEMESTER 4
SUBMITTED BY
AMBUJESH UPAMANYU
UID
SM0121006
FACULTY IN-CHARGE
DR. SHAILENDRA KUMAR
CONTENTS
1. INTRODUCTION
1.1 AIM
1.2 OBJECTIVE
1.3 RESEARCH QUESTIONS
1.4 RESEARCH METHODOLOGY
1.5 REVIEW OF LITERATURE
2. EXTENT OF CHILD LABOUR: A SOCIAL ISSUE
3. CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986
3.1 DRAWBACKS OF THE ACT
4. JUDICIARY AS THE SAVIOUR OF THIS MENACE
4.1 THE PATH BREAKING CASE: M.C MEHTA V. STATE OF TAMIL
NADU
5. CONCLUSION
6. BIBLIOGRAPHY
LABOUR LAW I Page |3
1.INTRODUCTION
The concept of "child labour"1 is typically used to describe any form of work that robs
children of their childhood, hinders their potential, and undermines their dignity, while also
being detrimental to their physical and mental development. This definition encompasses
work that is mentally, physically, socially, or morally dangerous and harmful to children. It
also includes work that interferes with a child's ability to attend and participate in school
fully. This can manifest in different ways, such as requiring a child to leave school
prematurely or attempting to combine school attendance with excessively long and laborious
work. Ultimately, child labour has the potential to limit a child's ability to grow and develop
in a healthy and fulfilling manner, and it is important to address this issue in a comprehensive
and effective manner.
Almost one third of the world population comprises children. Therefore, they deserve to be
cared for and protected to keep up and improve posterity. They are an important component
of the social structure and the potential future careers of culture. Social justice, therefore,
demands justice to children. The need for providing protection and safeguards to children
have first been stated in the Geneva Declaration of the Rights of the Child, 1924 and was
recognised in the Universal Declaration of Human Rights, 1948 and in the statutes of
specialised agencies of U.N.O. Art 25 of the Universal Declaration of Human Rights, 1948
provides that “motherhood and childhood are entitled to special care and assistance. All
children whether born in or out of wedlock, shall enjoy the same social protection”. Rights to
free and compulsory elementary education to children is assured by Article 26.
1
The term ‘child labour’ and ‘working children’ have different connotations, but both the terms are used
interchangeably on account of limitations of the available datasets.
LABOUR LAW I Page |4
problem is analysed in the context of children below the age of 14 who work in industrial and
non-industrial jobs that not only harm their physical, mental or moral development but also
hinder their social progress.2
This paper is an attempt to address the issue of Child Labour in India. In this paper the author
tries to put emphasis on the Child Labour (Prohibition and Regulation) Act, 1986. Again the
author discusses the drawbacks of the act. Lastly the author tries to explain how the judiciary
acts as a savior to this menace of Child Labour.
2
O. P. Maurya, Child Labour in India, Shri Ram Centre for Industrial Relations and Human Resources, Apr.,
2001, Vol. 36, No. 4 (Apr., 2001), pp. 492-498
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1.1 AIM
The aim of this paper is to study the problem of child labour in India by putting special
emphasis on the Child Labour (Prohibition and Regulation) Act, 1986 and relevant case laws
on child labour jurisprudence.
1.2 OBJECTIVE
To study the extent of Child Labour in India
To study the main provisions of the Child Labour (Prohibition and Regulation)
Act, 1986
To study the drawbacks of the Act
To study the various judicial pronouncements that acted as a savior to this menace
of child labour.
O. P. Maurya, Child Labour in India, Shri Ram Centre for Industrial Relations and
Human Resources, Apr., 2001, Vol. 36, No. 4 (Apr., 2001), pp. 492-498: a relevant read,
here the author made a attempt to analyse the problem of child labour in the context of those
working children below the age of 14 years who are engaged in gainful industrial and non-
industrial occupations which are not only viewed injurious to their physical, mental or moral
development but also hamper their social progress in a big way. The author tries to explain
his points with the help of judicial pronouncements.
Umesh Ch Sahoo, Child Labour and Legislation, Economic and Political Weekly , Nov.
17, 1990, Vol. 25, No. 46 (Nov. 17, 1990), pp. 2529-2530: An immensely relevant read, this
paper focuses on the problem of child labours in India. In this article the author tries to
explain that even after passing legislations, there have been over exploitation of children and
the problem of child labour continues especially in the agricultural sector and industry
production.
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The practice of child labour is very old in India and has been existing time immemorial in one
form or the other.
While child labour is a problem that affects the whole world, it is especially widespread in
developing countries. In 1980, the International Labour Organization's 'Bureau of Statistics
and Special Studies' conducted a study which found that there were 52 million children
working worldwide. What's more concerning is that 38 million of these children were in
Asia, with India alone accounting for one-third of Asia's child labour and one-fourth of the
total number of working children.3
Despite increased awareness and laws prohibiting child labour, the number of child laborers
in India continues to rise. According to the 1981 Census, out of a total of 263 million children
in India, 13.64 million were child labourers, a significant increase from the 10.7 million
reported in 1971. Girls accounted for 4.3 percent of child labourers while boys accounted for
2.1 percent, and the majority of child labourers (78.71 percent) were employed in agriculture
and cultivation. The National Sample Survey of 1988 found an even higher number of child
labourers at 17 million out of 270 million children. However, a Baroda-based NGO, the
Operations Research Group, claimed that the number of child labourers in India was as high
as 44 million in 1983, with 21 percent in urban areas and nearly 87 percent engaged in
agriculture, livestock, fishing, and plantation work. The Asian Labour Monitor also reported
that one-third of households in India had a working child.
According to the 2011 Census, the total number of children in India between the ages of 5
and 14 is 259.6 million. Out of this number, 10.1 million (which accounts for 3.9% of the
total child population) are currently working as either main workers or marginal workers.
Shockingly, an additional 42.7 million children are out of school. On a positive note, there
has been a decrease in the incidence of child labour in India by 2.6 million between 2001 and
2011. However, this decline has been mainly visible in rural areas, while the number of child
workers has increased in urban areas. This trend suggests that there is a growing demand for
3
Satya Sundaram, "Plight of Child Labourers", Financial Express 27 May 1991
LABOUR LAW I Page |8
child labour in menial jobs in urban areas. It is important to note that child labour has
different implications in rural and urban India.4
The problem of child labour in India is not a result of any single isolated factor. It is a multi-
dimensional problem that involves various reasons contributing to this problem in a variety of
ways. Some of the foremost ones responsible for prevalence and perpetuation for child labour
are, (i) continued poverty; (ii) illiteracy and ignorance of poor parents; (iii) inadequate family
income; (iv) large family; (v) indebtness; (vi) absence of social security schemes; and (vii)
provision for compulsory education. Apart from economic reasons, the fast erosion of social,
cultural and moral values scenario also changed with the advent of industrialisation and
urbanisation and child labour became an inescapable fall out of increasing urbanisation along
with exploding population. ion along and above this one another important reason child
labour as they may do the same amount of w less in terms of wages. Child workers are also a
g generate a larger surplus
The precise estimate of the overall magnitude of child labour in India is admittedly difficult
on account of the predominance of the informed and unorganised nature of labour market.
4
International Labour Organization, https://www.ilo.org/wcmsp5/groups/public (last visited May 11, 2023)
LABOUR LAW I Page |9
The Child Labour (Prohibition and Regulation) Act of 1986 was formulated in response to a
series of recommendations made by various Commissions5. This legislation replaced two
earlier laws6 related to child labour and has two seemingly conflicting goals - prohibiting and
regulating child labour simultaneously. However, these goals are not in accordance with the
constitutional principles7 that must be upheld. The International Labour Organization has
been working towards the eradication of child labour since its establishment in 1919, but it is
now clear that this is a complex and lengthy process that must be tackled systematically in
phases. As a result, the primary focus is on immediate action to ban child labour in hazardous
jobs and regulate it in non-hazardous occupations through the imposition of regulations on
working hours, weekly holidays, working conditions, wages, and other related matters. This
Act was enacted by India with the objective of complying with its international obligation to
implement the Convention on the Rights of the Child of 1989 while also striving to achieve
the ultimate goal of eradicating child labour completely.
The Child Labour (Prohibition and Regulation) Act, 1986 aims to protect children by
prohibiting their employment in hazardous occupations and regulating their services in non-
hazardous occupations. The Act lists 18 occupations and 65 processes in which employment
of children who have not completed their 14th year is strictly prohibited. Additionally, the
Act lays out a procedure to add more occupations or processes to the list of banned activities.
The working conditions of children in occupations where they are not prohibited from
working are also regulated. The Act imposes penalties for employing children in violation of
its provisions and other laws that forbid the employment of children. Furthermore, the Act
attempts to bring uniformity in the definition of a child across related laws. The primary goal
of the Act is to provide immediate relief to children engaged in hazardous employment and to
regulate the practice of child labour in non-hazardous employment, with the ultimate aim of
completely abolishing child labour in a systematic and phased manner.
5
The National Commission on Labour 1969; The Gurupadaswamy Committee on Labour 1976 and Sanat
Mehta Committee 1948
6
The Children (Pledging of Labour) Act, 1933 and The Employment of Children Act, 1938
7
INDIA CONST, art. 24
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The Act outlines the definition of a "child" in section 2(ii)8 as an individual who has not yet
turned 14 years old. It further categorises occupations as either "hazardous" or "non-
hazardous." As per the Act, children below 14 years of age are prohibited from working in
any of the jobs listed under part A of the Schedule or any workshop where any of the
procedures mentioned in part B of the Schedule are performed.
In establishments where none of the occupations or processes listed in the Schedule are
carried out, Part III of the Act regulates child labour and sets out conditions for the
employment of children in such non-hazardous occupations such as wages and employment
hours. The Act lays down specific provisions regarding the duration of work for a child in
any establishment, including the interval and waiting time, which should not exceed six hours
per day. Additionally, the Act prohibits night work for children between 7 p.m. and 8 a.m.
and double employment of a child in any establishment.
The Act also provides for inspection by inspectors appointed by the state government to look
into effective implementation of the Act and on contravention of any of the provisions of the
Act or rules made thereunder, it provides with stringent punishment which is simple
imprisonment extending upto one month or fine which may extend to Rs. 10,000 or both
under section 149. The penalty is greater for those who employ or permit any child to work in
contravention of the provisions of section 310. The punishment is between three months and
one year with fine between Rs 10,000 and 20,000 or with both and for a subsequent offence
the imprisonment is enhanced for a term not less than 6 months extending upto two years.
Therefore these are the some main objectives and salient features of the Child Labour
(Prohibition and Regulation) Act, 1986.
Upon reviewing the Act, it becomes apparent that it has several significant drawbacks. The
Act does not abolish child labour entirely, which is inconsistent with the underlying
8
See The Child Labour (Prohibition and Regulation) Act, 1986, §2(ii)
9
See The Child Labour (Prohibition and Regulation) Act, 1986, §14
10
See The Child Labour (Prohibition and Regulation) Act, 1986, §3
LABOUR LAW I P a g e | 11
principles of the Indian Constitution. For instance, while Article 2411 of the Constitution
prohibits employing children under the age of 14 in all factories and mines, regardless of their
hazardous nature, the Act only prohibits it in certain specified hazardous occupations.
Consequently, the Act appears to have contradictory goals of prohibiting and regulating child
labour simultaneously. Moreover, once the Act allows child labour in any occupation, it
becomes challenging to eradicate it entirely. Therefore, the primary objective of the Act
appears to be the regulation, rather than the complete abolition of child labour.
The Act lays down regulations for child labour in establishments where children below 14
years of age are allowed to work, including the glass or slate-pencil industries, among others,
as well as in establishments where none of the occupations or processes specified in the
Schedule are present, such as the transport of passengers or goods by railway, cinder picking,
beedi making, and carpet weaving, among others. However, this regulation does not apply to
workshops where the occupier carries out any processes with the help of their family, or to
any school that receives government recognition or assistance. Unfortunately, this provision
allows employers to evade prosecution, as inspectors cannot provide documentary evidence
that a child has been working in a non-family establishment.
The Act has failed to establish a minimum age for children to be employed in occupations.
Moreover, even in the permissible occupations specified by the Act, the minimum age for
employment is set at 14 years which goes against the standards recommended by the
International Labour Organisation, that recommends 18 years as the minimum age for
employment. This is a regrettable exclusion from the Act.
The unorganised sector is not covered by the Act, leaving children working in this sector
unprotected. The Ministry of Labour has failed to recognize the danger of the glass industry
for children, despite sufficient evidence indicating that it is hazardous to their health. The
slate and pencil industry, where children work under unhealthy conditions and suffer from
respiratory diseases, is not included in the purview of the Act. Likewise, the lock industry is
also not covered. The Act seems to also exclude the agricultural sector, which accounts for 80
percent of child labourers. Additionally, many small-scale units that function as household or
family units also fall outside the Act's regulatory framework.
11
No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any
other hazardous employment.
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It is the responsibility of the authorities to prove the age of a child in case of any dispute. This
requires significant time and effort from labour inspectors who are responsible for enforcing
child labour laws. However, due to their heavy workload, they are unable to dedicate the
necessary time to verify the age of the child. Furthermore, the Act does not make any
mention of the medical fitness of children who are employed or the requirement for regular
medical examinations of such children.
Despite the provision for maintaining a register containing the particulars of child labourers
employed in any establishment, it is widely known that such records are rarely kept in
practice. These registers are meant to document details such as the salary paid and the terms
and conditions of employment in order to provide evidence of their employment during
inspections. However, without these records, it becomes impossible to prosecute those who
violate the Act.
The penalty provision for the employers who violate the Act is not effective enough to act as
a deterrent, as it provides for either imprisonment or fine, and the fine increases only on a
second offence. This leaves the employer with an opportunity to avoid punishment by paying
a fine. Even though there are clear provisions regarding penalties, courts have been known to
impose penalties that are less than the statutory minimum in some cases.
The problem of child labour is deeply embedded in the socio-economic circumstances of the
people, and it cannot be eliminated entirely without significant improvements in those
conditions. The key to ending this problem lies in eradicating poverty, which is at the heart of
this suffering. This requires a combination of both preventive and remedial measures.
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5.1 The Path Breaking Case: M.C. Mehta v. State of Tamil Nadu, 199612
This case here is taken as an example of a PIL which became instrumental in changing the
landscape of the child rights scenario and related jurisprudence in India.
M. C. Mehta initiated a PIL in the Supreme Court of India claiming that numerous children
were working in several hazardous industries, particularly in the firecracker and matchstick
industries in Sivakasi, Tamil Nadu, which is in violation of the Constitution that prohibits
employment of children below fourteen years in factories, mines, or hazardous jobs. Child
labour is a widely acknowledged social issue, and the PIL aimed to bring this pressing issue
under legal scrutiny. As of December 1, 1985, there were 221 registered match factories in
Sivakasi, employing a total of 27,338 workers, out of which 2,941 were children. M. C.
Mehta's public interest litigation (PIL) in the Supreme Court of India highlighted his
apprehension regarding the future and safety of children working in hazardous industries,
particularly the firecracker and matchstick industries in Sivakasi, Tamil Nadu. This not only
points towards a large-scale violation of human rights, but also raises concerns about the
health and well-being of these children. Despite the existence of the Child Labour
(Prohibition and Regulation) Act, 1986, the judgement scrutinizes the persistence of child
labour and the underlying causes behind it.
During the hearing, the Supreme Court of India appointed a committee to investigate the
matter and report on various aspects related to child labour. This committee had already been
appointed earlier to tackle the child labour problem in Sivakasi. On November 11, 1991, the
committee submitted its report with a number of recommendations. One recommendation
was that the state of Tamil Nadu should be directed to prohibit the employment of children in
hazardous industries. Another recommendation was that children should have a separate area
where they work no more than six hours, and should also be provided with proper transport,
recreation, and education facilities in or around the factory. The committee also
recommended providing basic necessities such as food, monthly payment, and insurance to
12
M.C. Mehta v. State of Tamil Nadu, 1996 6 (SCC) 756
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The Supreme Court acknowledged that Sivakasi wasn't the only place where child labour was
a problem, but rather that it was a widespread national issue in India, even after 50 years of
independence and the implementation of various laws. The court pointed out poverty, low
wages for adults, unemployment, the lack of family allowance programs, migration to urban
areas, large families, the availability of cheap child labour, the absence of mandatory
education, parents' illiteracy or ignorance, and traditional attitudes as the causes of child
labour. Further the Supreme Court of India gave several directions:
● The state government must conduct a survey in their respective states within a period
of six months on the issue of child labour.
● The offending employees have to pay a sum of Rs. 20,000/- for every child who is
employed in lieu of infringement of Child Labor Act.
● The state should ensure that the child who is employed in a factory, his parent or
guardian should be provided employment too. If the state government fails to do that
then the state government has to contribute Rs. 5000 to the child rehabilitation cum
welfare fund.
● On the discontinuation of the employment, the child has to be assured admission
education in an appropriate institute. The inspectors will further make sure that these
directions are carried on.
● The inspectors who are appointed under section 1713 of the act, should bear the
responsibility of implementing the above direction. The sum should be deposited in a
fund which would be called child labour rehabilitation cum welfare fund.
● The district collector would be responsible for monitoring the functioning of the
inspectors. While the secretary of the labour department would be responsible for
monitoring the scheme.
It is pertinent to mention here that the implementation of the judgement has not yet been done
in the manner as has been envisaged by the Supreme Court.
13
See The Child Labour (Prohibition and Regulation) Act, 1986, §17
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Again,
In the Asiad Work Case14, the Supreme Court emphasized that Article 24, which prohibits the
employment of children below the age of 14 in hazardous occupations, is a Fundamental
Right against exploitation applicable to all. The Court clarified that engagement of children in
construction work falls under hazardous employment, rejecting the argument put forth by the
Delhi Development Authority that construction work is not specified in the schedule of the
Child Labour Act of 1986. The Court criticized this omission and urged all State
Governments to amend the schedule to include the construction industry. The Supreme Court,
in this judgment, also explored the doctrine of 'Locus Standi' to enable access to justice for
disadvantaged individuals by allowing public-spirited individuals to file PIL (Public Interest
Litigation) cases on their behalf under Article 32 or 226 of the Indian Constitution. This
principle was reiterated in the case of Labourers Working on Salal Hydro-Project v State of
Jammu and Kashmir15, where the Court encouraged the government to persuade workers to
send their children to school and provide free education.
A similar theme like in the case of M.C Mehta, in Bandhua Mukti Morcha v. Union of
India16, where the focus was on child labour in the carpet industry in Uttar Pradesh. The
Court referred to Article 24 and Article 39 (e) and (f) of the Constitution of India to address
the issue and provide justice to the affected children and observed:
"It would, therefore be incumbent upon the State to provide facilities and opportunities as enjoined
under Articles 39(e) and (f) of the Constitution, and to prevent exploitation of their childhood due to
indigence and vagary. As stated earlier, their employment- either forced or voluntary- is occasioned
due to economic necessity: exploitation of their childhood due to poverty, in particular, the poor and
the deprived sections of the society, is detrimental to democracy and social stability, unity and
integrity of the nations."
In the case of Unnikrishnan, J.P. v. State of Andhra Pradesh17, the Supreme Court inferred the
right to education from the right to life and personal liberty guaranteed by Article 21 of the
Indian Constitution. The Court also examined the relationship between Fundamental Rights
and Directive Principles of State Policy and observed that the content of the right to
14
People's Union for Democratic Rights v Union of India, AIR 1982 SC 1473
15
Salal Hydro-Project v State of Jammu and Kashmir, AIR 1984 SC 177
16
Bandhua Mukti Morcha v. Union of India, AIR 1997 SC 2218: (1997) 10 SCC 549
17
Unnikrishnan, J.P. v. State of Andhra Pradesh, (1993) 1 SCC 645
LABOUR LAW I P a g e | 16
education should be determined in the context of Articles 41, 45, 46, and 47 of the
Constitution. The Court emphatically stated that every child has a Fundamental Right to
receive free and compulsory elementary education until the age of 14 years.
Thus, these judicial pronouncements highlight the constitutional aspects and the Court's
efforts to eradicate child labour and protect the rights and welfare of children in India.
LABOUR LAW I P a g e | 17
5.CONCLUSION
In conclusion, the analysis of the social problem of child labour in India, with a special
emphasis on the Child Labour Act of 1986, reveals significant shortcomings in addressing
this pressing issue. Despite the enactment of the Act, child labour remains a prevalent and
persistent problem in the country. The Act, although aimed at prohibiting and regulating child
labour, has several drawbacks that hinder its effectiveness in combating this issue.
One of the major drawbacks of the Child Labour Act, as highlighted by several judicial
pronouncements, is its failure to provide adequate protection to children working in various
sectors, particularly in the unorganized sector. This omission leaves a significant portion of
child labourers outside the purview of the Act's regulations, perpetuating their exploitation
and compromising their well-being.
Furthermore, the Act does not establish a minimum age for permissible occupations,
disregarding the recommended international standard set by the International Labour
Organization (ILO) of 18 years. This discrepancy raises concerns about the Act's
commitment to ensuring the protection and development of children.
Judicial pronouncements have also shed light on the lenient penalties imposed on employers
who violate the provisions of the Act. The existing penalty structure, which primarily
includes fines or imprisonment, fails to act as a deterrent and allows employers to escape
significant consequences for their actions. This loophole undermines the Act's effectiveness
in deterring employers from engaging in child labour practices.
Moreover, the Act lacks provisions addressing the medical fitness of children employed in
various occupations. The absence of regular medical examinations for child workers
disregards their health and well-being, further exacerbating the risks they face in hazardous
working conditions.
Given these drawbacks and the persistence of child labour in India, it is imperative to
reevaluate and strengthen the Child Labour Act of 1986. The Act should be revised to
encompass the unorganized sector, establish a higher minimum age for permissible
LABOUR LAW I P a g e | 18
occupations in line with international standards, impose more stringent penalties on violators,
and prioritize the health and safety of child workers through regular medical examinations.
Efforts should also be directed towards raising awareness, improving access to education, and
addressing the socio-economic factors that contribute to child labour. By adopting a
comprehensive approach that combines legal reforms, social interventions, and concerted
efforts from various stakeholders, India can make significant strides in eradicating child
labour and ensuring a better future for its children.
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6.BIBLIOGRAPHY
1. O. P. Maurya, Child Labour in India, Shri Ram Centre for Industrial Relations and
Human Resources, Apr., 2001, Vol. 36, No. 4 (Apr., 2001), pp. 492-498
2. Satya Sundaram, "Plight of Child Labourers", Financial Express 27 May 1991
3. International Labour Organization, https://www.ilo.org/wcmsp5/groups/public (last
visited May 11, 2023)
4. Dr. Ranjit Sil, CHILD LABOUR: A CRITICAL LEGAL ANALYSIS,
https://ir.nbu.ac.in/bitstream/123456789/3034/1/March2017_02.pdf (Last visited 15
May, 2023)
5. Umesh Ch Sahoo, Child Labour and Legislation, Economic and Political Weekly ,
Nov. 17, 1990, Vol. 25, No. 46 (Nov. 17, 1990), pp. 2529-2530
BARE ACT(S):
The Child Labour (Prohibition and Regulation) Act, 1986
The Constitution of India
The Children (Pledging of Labour) Act, 1933
The Employment of Children Act, 1938
BOOK(S)
S.N MISHRA, LABOUR & INDUSTRIAL LAWS, 28TH EDITION, 2016
DR. V.G GOSWAMI, LABOUR & INDUSTRIAL LAWS, 10TH EDITION, 2015