Swati Jha, Associate Lawyer, Kaden Boriss
A crucial legislation received the assent of the President on 29th July, 2016 for the future of approximately 33 million child labourers in India (hereinafter referred to as “Child Labour”). As a result of the enactment of the Child Labour (Prohibition and Regulation) Amendment Act, 2016, the Child Labour (Prohibition and Regulation) Act, 1986 is now re-titled as the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (hereinafter referred to as “Act”), in order to reflect its expanded scope and coverage.
This newly passed Act seeks to eradicate Child Labour controversy and is prospective and comprehensive in nature. The purpose of the Act is to practically implement it at the grass root level. The article deals with salient features of the Act, elaborating upon the key changes that have been made. It also covers several criticisms of the Act, and many problems with which the new Act suffers.
There are two conventions which are extremely important ‘United Nations Convention on the Rights of the Child’ and ‘International Labor Organization’ they are complementary but not contradictory to each other.
The government rewrite certain parts to the Child Labour Act as a result of the 2016 Amendment Act which are as follows:
Section 2(ii) Definition of ‘child’: it has been amended to mean a person who has not completed 14 years or such age as specified under the Right to Education Act, whichever is higher.
Section 2(i) Definition of ‘adolescent’ introduced: ‘Adolescent’ has been defined to mean a person who has completed his 14th year but not completed his 18th year.
Section 3 Prohibition of Child Labour: A complete ban has been imposed on employing children in any occupation and process, though it has two exception which are as follows:
- Firstly, they are allowed to help his family or family enterprise provided that (i) such enterprise is not involved in hazardous occupation or processes as set forth in the schedule of the Act and the work is carried out after school hours or during vacations.
- Secondly, they are allowed to work as an artist in any audio-visual entertainment industry, including advertisement, films, television serials or any such other entertainment or sports activities except circus subject to (i) compliance with prescribed conditions and adoption of safety measures, and (ii) the work does not affect the school education of the child.
Section 3A Prohibition on employment of adolescents: Insertion of this new provision prohibiting employment of adolescents in hazardous occupations and processes introduced.
Section 14 Penalties for infringement has been escalated: While the punishment for employers has been significantly intensified, the punishment for parents / guardians has been relaxed. However the offences and penalties for the same are laid out below:-
OFFENCES & PENALTY:
Employing a Child or even permitting them in any work or process in breach of Section 3 of the Act – Imprisonment which may not be less than six(6) months but may extend two (2) years; or with fine which shall not be less than Rs. 20,000 (twenty thousand) or may extend to Rs. 50,000 (fifty thousand) or with both.
Employing any adolescent or permitting an adolescent to work in contravention of Section 3A i.e. hazardous occupations or processes. – Imprisonment for a term which shall not be less than six (6) months but may extend to two (2) years; fine not less than Rs. 20,000 (twenty thousand) which may exceed to Rs.50, 000 (fifty thousand) or with both.
Any subsequent or second offence of Employing any child or adolescent in contravention of the statute. – Imprisonment: 1 – 3 years
Under Section 14 punishment for parents/guardians have been relaxed: Parent or guardians shall not be punished (unless they are in breach of Section 3 and Section 3A of the Act). In case of a second and subsequent offence, the penalty prescribed is a maximum fine of Rs. 10,000 (ten thousand).
Section 14A Offences to be Cognizable- Any offences committed by an employer and which is punishable under Section 3 or Section 3A shall be cognizable offence. Therefore, authorities can arrest without warrant.
Powers of District Magistrate: Powers have been vested with the District Magistrate to ensure that the provisions of the amended law are properly enforced.
Section 14B Child and Adolescent Labour Rehabilitation Fund: Provision has been made for establishment of a special fund by the appropriate government. The appropriate government shall credit an amount of Rs. 15,000 (fifteen thousand) to such fund for each child or adolescent for whom the fine amount has been credited.
Section 14D Compounding of offences: Provision has been made for compounding of offences on application made by the accused to the District Magistrate. Further under Section 17D of the Act the District Magistrate has the power to implement the provisions and carry out all the powers and duties as prescribed under the umbrella of this Act.
Section 17B Inspection and Monitoring: Provision has been made for periodic inspection and monitoring by the appropriate government of places where employment of children is prohibited and hazardous occupations or processes are carried out.
The Act is undeniably a major step forward and has tried to synchronise the Right to Education Act and Juvenile Justice Act. It has tried to minimise children from not doing anything else but studies. It’s a welcome move but there are some concerns which are discussed below:-
One of the problematic areas is that there is a proviso in the Act which allows children to work in family enterprise and the entertainment sector after school hours as discussed above in point no 3 of this article. The loophole here is that the entertainment sector is large and not defined it can be exploited for e.g. a child performing in restaurant in the name of folk music or dances or working in spa such acts increases vulnerability of Child labours.
There are no hours of works and simply states children may work after school, this is absurd as the child after working may not have the stamina to complete his homework or go back to the school next day. Therefore, there is no authority to keep a check to ensure that permitted activities are not hindering or affecting the education of children.
The Act virtually allows to work and is one of the major issues because the list of hazardous occupations for children has been reduced from 83 to 3 which include only (i) mining, (ii) explosives and (iii) other occupations mentioned in the Factories Act, 1948. Hence, various works including work in chemical units, cotton farms, battery recycling units, brick kilns, have been dropped from the list of hazardous activities and there does not seem to be valid justification for removal of any of these activities. The distinction between adult and Adolescent has been smudged here.
This is an Act which on the face looks very radical as it brings into harmony the Right to Education Act and abolition of all type of Child Labour; it criminalises the employment of children, but in order to eradicate Child Labour a holistic approach needs to be adopted.
 “Family” in relation to a Child means his mother, father, brother, sister and father’s sister and brother and mother’s sister and brother.
 “Family enterprise” means any work, profession, manufacture or business which is performed by the members of the family with the engagement of other persons.
 “Artist” means a child who performs or practices any work as a hobby or profession directly involving him as an actor, singer, sports person or in such other activity as may be prescribed relating to the entertainment or sports activities.
 This is newly added schedule read with section 3A of the Act- Mines, Inflammable substances or explosives and Hazardous process.
Explanation — For the purposes of this Schedule, “hazardous process” has the meaning assigned to it in clause (cb) of the Factories Act, 1948 (63 of 1948).]
 Section 3 (d)Whoever fails to comply with or contravenes any other provisions of this Act or the rules made there under, shall be punishable with simple imprisonment which may extend to one month or with fine which may extend to ten thousand (Rs. 10.000) or with both.