Salient Features of the Child Labour

(Prohibition and Regulation) Act, 1986

(some error in project plz refer to case laws mainly)

University Institute of Legal Studies, Panjab University, Chandigarh

Table of Contents

Topics Page(s).

List of Cases 3

List of Abbreviation 4

Page | 1
Chapter-I: - Introduction 5-6

Chapter-II:- Salient Features of The Child Labour (Prohibition And 6- 16

Regulation) Act, 1986
Chapter-III:- Development of the Law of The Child Labour (Prohibition And 17-19
Regulation) Act, 1986
Chapter-IV:- Criticism of The Child Labour (Prohibition And Regulation) 20-21
Act, 1986
Chapter-V:- Reforms of The Child Labour (Prohibition And Regulation) Act, 22-24
1986
Chapter-VI: - Child Labour (Prohibition and Regulation) Amendment Bill, 25-26
2012
Chapter-VII:- Conclusion 27

Bibliography 28

LIST OF CASES

Bandhua Mukti Morcha v. Union of India; AIR 1984 SC 802

Hemendra Bhai v. State of Chattisgarh; (2003) II LJ 664 (Chatt)

Hydro Project v. State of Jammu and Kashmir; 1984 AIR 177

Jan Mohan v. State of Gujarat, 1966 SC 385.

Labourers Working on Salal Hydro Project v. State of Jammu and Kashmir; (1983) 2 SCC
181 at 191

Page | 2
M.C. Mehta v State of Tamil Nadu & Ors; AIR 1997 SC 699

M.C. Mehta v. State of Tamil Nadu; (1991) 1 SCC 283

Maneka Gandhi v. Union of India; AIR 1978 SC 597; 1978 SCR (2) 621

Mohini Jain v. State of Karnataka; (1992) 1 SCC 666.

P.U.D.R. v. Union of India; AIR (1982) Supreme Court 1480

Rajangam, Secretary, District Beedi Workers Union v. State of Tamil Nadu; (1992) 1 SCC
221

Ram Chander v. State of U.P. DATE OF JUDGMENT 01/09/1976

Unni krishnan v. State of Andhra Pradesh, (1993) 1 SCC 645

Waheed Hasan Khan v. State, AIR 1960 Bom 299

LIST OF ABBREVIATIONS

Acc. - According

AC - Appellate Court

AIC - All India Cases

AIR - All India Report

CRC- Convention on the Rights of the Child

Page | 3
 Cr. P.C.- Code of Criminal Procedure

FIR- First Information Report

HC- High Court

IPC- Indian Penal Code

LJ- Law Journal

NGO- Non- Governmental Organization

SC- Supreme Court

SCC-. Supreme Court Cases

SCJ - Supreme Court Journal

SCR - Supreme Court Reports

UOI- Union of India

v.- Versus

CHAPTER – l

INTRODUCTION

A child1 of today cannot develop to be a responsible and productive member of

tomorrow’s society unless an environment conducive to his intellectual, physical and
social health is assured to him. Extreme poverty, lack of opportunity for gainful
employment, seasonal nature of income, low standard of living and cheap labour were
the main causes for the wide prevalence of child labour in India.

1
A person who has not completed 14 years of age

Page | 4
The Child Labour (Prohibition and Regulation) Act was notified in the State in 1986 and
the Rules in 1995. This act was the culmination of effort and ideas that emerged from
the deliberations and recommendations of various committees on child labour.
Significant among them are the National Commission on Labour (1966-69),
Gurupadaswamy Committee on Child Labour (1979), Sanat Mehta Committee (1984)
and others. This social legislation is designed to protect the interest of a class of society
who, because of their economic conditions, deserves such protection. With a view to
pass the test of reasonable classification there must exist intelligible differentia between
persons or thing grouped together from those who have been left out and there must by
a reasonable nexus with the object to be achieved by the legislation2.

Besides this Act, the other Acts which prohibit employment of children under 14 years
of age are the Factories Act, 1948; Plantation Labour Act, 1951; Mines Act, 1952; Motor
Transport Workers Act, 1961 and Beedi and Cigar Workers (Conditions of Employment)
Act, 1966. Andhra Pradesh had 13 lakh child labour according to the 2001 census.
Major export industries which utilise child labour in the State include hand-knotted
carpets, gem stone polishing, brass and base metal articles, glass and glassware,
footwear, textiles, silk and matches, fireworks. Other industries include locks, leather,
pottery, granite, mica slate mining and quarrying, auto parts and accessories, cashew
processing, coir products, beedi industry, fish and seafood processing and tea industry.

CHAPTER 2

SALIENT FEATURES OF THE CHILD LABOUR (PROHIBITION AND

REGULATION) ACT, 1986

OBJECT

It is a fundamental principle of interpretation that the object of a legislation, must be

given due consideration when a question of the interpretation of the legislation arises. 3
The principle is especially applicable in the case of socially beneficial legislation
2
Cigno Alessandro, THE ECONOMICS OF CHILD LABOUR, 2005, 1st Ed., Oxford University Press Pg. 12
3
Goswami, V.G., Labour Industrial Laws, Central Law Agency (2008) pp.205

Page | 5
 wherein protection of vulnerable groups of the society overrides individual liberty. 4 It is
therefore vital to consider the object of the Child Labour (Prohibition and Regulation)
Act, 1986, (“The Act”), and to keep this object in mind while considering the
interpretation of the various provisions of the act. The statement of objects and reasons
appended to the acts states as follows:

“An Act to prohibit the engagement of children in certain employments and to

regulate the conditions of work of children in certain other employments.”

There are a number of enactments which prohibit, the employment of children below
14 years and 15 years of age in certain specified employments. However, there is no
procedure laid down in any law for deciding in which employments, occupations or
processes the employment of children should be banned. There is also no law to
regulate the working conditions of children in most of the employments where they are
not prohibited from working and are working under exploitative conditions. Therefore
the Act has been enacted to prohibit the engagement of children in certain employments
and to regulate the conditions of work of children in certain other employments. This
Act seeks to achieve the following objects:

i. To ban the employment of children, i.e., those who have not completed their
fourteenth year, in specified occupations and processes;
ii. To lay down a procedure to decide modifications to the Schedule of banned
occupations or processes;
iii. To regulate the conditions of work of children in employments where they are
not prohibited from working;
iv. To lay down enhanced penalties for employment of children in violation of
provisions of this Act, and other Acts which forbid the employment of children;
v. To obtain uniformity in the definition of "child" in the related laws. 5

SCOPE OF APPLICATION

4
Srivastava K.D., Law relating to Trade Unions and unfair labour practices in India, Eastern Pub. Lucknow.
pp.215
5
Kumar Arun, Child as Human Resource : Policies and Approaches, Sarup and Sons, New Delhi (2002) Pg22.

Page | 6
Unlike typical central legislations, the Act, being a socially beneficial legislation, has pan-
India applicability including being applicable to the State of Jammu and Kashmir in
accordance with Section 1(2) of the Act.

DEFINITIONS

As per the Act, section 2 (ii) defines Child as a

“a person who has not completed his fourteenth year of age”;

This act observes the age of 14 years to define a child. The same stand has been taken by
the Constitution of India6 and various other legislations such as Merchant Shipping Act
1958, Motor Transport Workers Act 1961, Apprentices Act 1961, Bidi and Cigar
Workers Act, 1966, Plantation Labour Act 1951, Factories Act, 1948. In case of Unni
krishnan v. State of Andhra Pradesh7 while discussing the welfare and development of
children, the court laid down the age of child ‘up to 14 years’ i.e. till he completes the
age of 14 years.

IMPORTANT FUNCTIONAL PROVISIONS

The important functional provisions of the act which contain the actual prohibitions are
contained in Part II of the Act, from sections 3 to 5. It is important to note that unlike the
restrictions in other countries8, there is no blanket ban on children taking up
employment, and the restrictions are merely partial extending only to specified
activities, specified occupations or a combination of both. The most important provision
of the act is Section 3 which states as follows:

“3. Prohibition of employment of children in certain occupations and

processes.— No child shall be employed or permitted to work in any of the
occupations set forth in Part A of the Schedule or in any workshop wherein any of
the processes set forth in Part B of the Schedule is carried on:

6
Article 21 and 24 of Constitution of India
7
1993(9) SCC 645.
8
Goswami, V.G., Labour Industrial Laws, Central Law Agency (2008) pp.205

Page | 7
 Provided that nothing in this section shall apply to any workshop wherein any
process is carried on by the occupier with the aid of his family or to any school
established by, or receiving assistance or recognition from, Government.”

The section therefore restricts the employment of children in 2 circumstances:

1. When they are working in the occupations set forth in Part A of the Schedule; or
2. When they employed in any of the processes set forth in Part B.

Therefore an analysis of the aforementioned Section 3 reveals that in case a child is

employed in an occupation or a process not notified under the Schedule such
employment will not be prohibited under the act even if such employment or process
may be extremely detrimental to the Child’s development- mental, social, physical or
otherwise. This has been one of the biggest criticisms of the act. 9 Such a list which
excludes certain occupations/processes is a negative list and it is often suggested that
the act should be amended to include, after conducting extensive research and empirical
analysis, a positive list which shall include a list of all occupations/processes which are
safe for employment of children. This will go a long way in reducing the number and the
exploitation of Child labours.

Referring to the case of Peoples Union for Democratic Rights v. Union of India10, the
Supreme Court ruled that the activity construction was not allowed under the
Employment of Children Act of 1938. The act did not specifically name construction as
one of the "hazardous" employments outlawed. The case was brought by an activist
organization upset that migrant children under 14 were being employed to do
construction work for the Asian Games. The year following this decision, it was
reiterated in Hydro Project v. State of Jammu and Kashmir11 after children were found to
have been among those working on the hydroelectric project. The building and
construction industry prohibition was included in the Section 3 of Child Labour
Prohibition and Regulation Act of 1986. Further, Rajangam, Secretary, District Beedi
Workers Union v. State of Tamil Nadu12 was a letter petition addressed to the Supreme
Court by the petitioner complaining about manipulation of records regarding the
9
http://www.nalsar.ac.in/pdf/Journals/Nalsar%20Law%20Review-Vol.%205.pdf Date – 31 March, 2014, Time
2:00 p.m.
10
AIR 1982 SC 1480
11
1984 AIR 177
12
17 (1992) 1 SCC 221.

Page | 8
employees, non-payment of appropriate dues of work taken, failure to implement the
provisions of the labour laws, prevalence of contract labour system and exploitation of
child labour by owners of beedi factories in the State of Tamil Nadu. On the basis of the
report submitted by the Society for Community Organisation Trust appointed by the
apex court to investigate the allegations, the court issued certain directions, inter alia,

(a) Tobacco manufacturing has indeed health hazards. Child labour in this trade
should therefore be prohibited as far as possible and employment of child labour
should be stopped either immediately or in a phased manner to be decided by
the state governments but within a period not exceeding three years from now.
The provisions of Child Labour Act should be strictly implemented.
(b) In view of the health hazard involved in the manufacturing process, every
worker including children, if employed, should be insured for a minimum
amount of Rs. 50,000/- and the premium should be paid by the employer and the
incidence should not be passed on to the workman.

Section 5 of the said Act deals with the constitution of Child Labour Technical Advisory
Committee. As per this section The Central Government can constitute an advisory
committee through notification in the Official Gazette. The said Committee would
consist of a Chairman and 10 other members, as may be appointed by the Central
Government. The main function of the said committee is to advise the Central
Government for the purpose of addition of occupations and processes to the Schedule. It
also has the power to constitute one or more sub-committees and may appoint to any
such sub-committee13.

The powers of the Central government were further discussed in Bandhua Mukti
Morcha v. Union of India and others14, the Hon’ble Judges Amrendra Nath Sen, P.N.
Bhagwati and R.S. Pathak laid down 21 guidelines in this case. Some of them are:-

1. The Central Government and the Government of Haryana will ensure that
minimum wage is paid to the women and/or children who look after the
vessels/in which pure drinking water is kept for the workmen.
2. There should also be the arrangement of the appropriate medical facility and
First Aid Facility
13
Cigno Alessandro, THE ECONOMICS OF CHILD LABOUR, 2005, 1 st Ed., Oxford University Press Pg. 19
14
AIR 1997 SC 699

Page | 9
 3. The medical facility should be free of cost.

REGULATION OF CONDITIONS OF WORK OF CHILDREN

Section 7 of the said act governs hours and period of work of a child working in
establishment or a class of establishments in which none of the occupations or
processes referred to in Section 3 is carried on 15. As per this section, a child is allowed to
work for a period of not more than six hours, including the time spent in waiting for
work on any day. Along with this no child can work for more than three hours before he
has had an interval for rest for at least one hour and the period of work arranged for a
child will be so that inclusive of his said interval for rest.

Under clause (4) of Section 7 it has been clearly stated that a child shall not be
permitted to work between 7 p.m. and 8 and can neither work overtime 16 Also under
Section 8 every child employed in an establishment is allowed, a holiday of one whole
day, in each week.

In M.C. Mehta v. State of Tamil Nadu & Others,17 Sivakasi was taken as the worst offender
in the matter of violating prohibition of employing child labour. As the situation there
had become intolerable, Shri M.C. Mehta thought it necessary to invoke this Court's
power under Article 32, as after all the fundamental right of the children guaranteed by
Article 24 was being grossly violated. He, therefore, filed this petition. The Court noted
that the manufacturing process of matches and fireworks (for the manufacture of which
also Sivakasi is a traditional centre) is hazardous, giving rise to accidents including fatal
cases. So, keeping in view the provisions contained in Articles 39 (f) and 45 of the
Constitution, it gave certain directions as to how the quality of life of children employed
in the factories could be improved. The Court also felt the need of constituting a
committee to oversee the directions.

The bench compromising of Justice Kuldip Singh, B.L. Hansaria, and S.B. Majumdar
issued several direction:- 

15
Section 6, The Child Labour (Prohibition and Regulation) Act, 1986
16
Section 7 (5) The Child Labour (Prohibition and Regulation) Act, 1986
17
AIR 1984 SC 802

Page | 10
 (i) Provision of education in a suitable institution for the child withdrawn from
work in hazardous and prohibited categories of employment. In the non-
hazardous category, the court permitted children to work for 4-6 hours a
day and receive education for two hours a day with a clear direction that the
cost of such education should be borne by the employer of the establishment
concerned.

(ii) Payment of compensation of Rs. 20,000 by the offender employer for every child
employed in contravention of the Act.

(iii) Alternate employment to an adult member of the family in place of the child
withdrawn from the hazardous occupation, or payment of Rs.5,000 for each
child employed in hazardous employment by the appropriate
government(either central or state) to  the family of the child withdrawn from
work.

The Act also prescribes detailed procedures like a mandatory notice from the employer
to the inspector of his area which contains the details of his establishment, the address
and the nature of occupation, maintenance of the register by the employer 18.

Further, Section 13 deals with the health and safety of the children working in the said
establishments. It lays down the Rules to be prescribed by the state government for
safety and health norms of the children working in permitted establishments. Sub –
clause (2) states 24 matters on which such rules can be made such as providing child
workers facilities of drinking water, latrines and urinals, cleanliness, disposal of wastes
and effluents, ventilation and temperature, etc. should be provided by the employer.
Measures for safety from dust and fume, artificial humidification, fencing of machinery
etc., also need to be provided by the employer19.

Thus, this act broadly defines the rights of a child in working conditions. It
encompasses all the major provision and the guidelines necessary for the smooth
functioning of the act, thus widening its scope.

18
Section 11 The Child Labour (Prohibition and Regulation) Act, 1986
19
Goswami, V.G. Labour Industrial Laws, Central Law Pub. Alahabad, (2008) p.206

Page | 11
PENALTIES

According to Section 14 of the Child Labour Act, whoever employs any child labour in
contravention of the provision of Section 3 of the Act shall be punishable with

(i) imprisonment for a term ranging from three months to one year or
(ii) fine ranging from Rs 10000 to Rs 20000 or
(iii) both imprisonment and fine. Any employer of child labour found guilty under
the provisions of various Acts, should be prosecuted as per the provisions of
Section 14 of the Child Labour Act and not under the respective Acts.

Also, failure to give notice as required by Section 9, or to maintain a register as required

by Section 11 or to display a notice containing an abstract of Section 3 and this section
as required by Section 12; or to comply with or contravenes any other provisions of this
Act or the rules or makes any false entry in any such register shall be punishable with
simple imprisonment which may extend to one month or with fine which may extend to
ten thousand rupees or with both.

In Hemendra Bhai v. State of Chattisgarh20 the applicant was a partner of a firm, namely,
Dayalal Meghji & Co. carrying on business of manufacturing and selling of bidis at
Raipur. In pursuance to the directions of the Supreme Court a surveyor inspected the
house of one Santosh Sahu of village Datranji, District, Raipur and found one boy, named
Kevra aged about 11 years making bidis. On being asked Santosh told him that bidis
were made for the above firm (i.e., Dayalal Meghji & Co.). The surveyor submitted a
report to Assistant Labour Commissioner and he issued a show cause notice to the firm
directing it to deposit Rs. 20,000 as per directions of the Supreme Court and also to
provide education to children working in bidi manufacturing on the premises of the
firm. The firm challenged the demand notice and the Madhya Pradesh High Court,
Jabalpur by an order dated March 23, 1998 directed the firm to appear before the officer
concerned and the officer was directed to provide opportunity of hearing to the
applicant and the demand notice was stayed till disposal of the representation. On 30th
April, 1998 another show cause notice was issued to the firm calling upon to show cause
as to why the amount of Rs. 20,000 be not recovered from the firm. The firm made a
detailed representation on May 13, 1998. The Inspector appointed under the Child
20
(2003) II L.L.J. 645 (Chhat.).

Page | 12
Labour (Prohibition and Regulation) Act, 1986 submitted a charge-sheet before the
Chief Judicial Magistrate, Raipur for the Commission of offence under Section 14 of the
Ad against the petitioner showing him as employer. In this petition the said criminal
proceedings were sought to be quashed under Section 482 of the Criminal Procedure
Code. The High Court quashed the proceedings for following reasons:

i. The trial Magistrate has not applied his mind to the facts and the law applicable
to the present case;
ii. The firm had not employed the child as labourer in any workshop where its bidi
making was carried on. The workers were supplied raw materials and they
rolled bidis in their respective houses taking assistance of their children. The
firm had no control or supervision over the work of those workers;
iii. If the house of the worker was treated as workshop under the definition in
Section 2(x) of the Act, then the worker who was the owner of the house became
the occupier under Section 2(vi);
iv. Lastly there was no document or material to show that the child labourer in
question was below 14 years of age.

In Ram Chander v. State of U.P21 the petitioner was prosecuted under the Child Labour
(Prohibition and Regulation) Act, 1986 for having employed a person below 12 years in
his carpet loom. To justify a conviction under Section 14(1) of the Act the age of person
employed must be proved to be below 14 years and the burden to prove that is on the
prosecution. In this revision application filed by the applicant against his conviction and
sentence under Section 14(1) of the Act for having employed a person below 14 years
the trial and appellate courts below had cast that burden on the accused applicant. The
High Court held that the burden to prove the age of person employed was on the
prosecution under Section 14(1) of the Act and that burden had not been discharged by
the prosecution. Hence the revision was allowed.

Section 16 states the procedure relating to offences. As per this section

1. “Any person, police officer or Inspector may file a complaint of the

commission of an offence under this Act in any court of competent
jurisdiction.

21
 DATE OF JUDGMENT 01/09/1976

Page | 13
 2. Every certificate as to the age of a child which has been granted by a
prescribed medical authority shall, for the purposes of this Act, be conclusive
evidence as to the age of the child to whom it relates.
3. No court inferior to that of a Metropolitan Magistrate or a
Magistrate of the first class shall try any offence under this Act.”

The word 'complaint' as used in this section has a wide meaning since it includes even
an oral allegation. No particular form of complaint is prescribed. But a complaint must
be an allegation prima facie disclosing the necessary facts that are necessary to
constitute the offence alleged. It is on the basis of these facts that the Magistrate takes
action22

Appointment of inspectors has been dealt under Section 17 which allows the
appropriate Government to appoint inspectors for the purposes of securing compliance
with the provisions of this Act. In case of M.C. Mehta v. State of Tamil Nadu23 it was held
that the Inspectors appointed under section 17 would see that for each child employed
in violation of the provisions of the Act, the concerned employer pays Rs. 20,000 which
sum could be deposited in a fund to be known as Child Labour Rehabilitation-cum-
Welfare Fund;

RULES AND OTHER PROVISIONS

Another salient feature of this act has been provided under Section 19.

“Section 19 – Rules and notifications to be laid before the Parliament or State

legislature.—(1) Every rule made under this Act by the Central Government and
every notification issued under Section 4, shall be laid, as soon as may be after it is
made or issued, before each House of Parliament, while it is in session for a total
period of thirty days which may be comprised in one session or in two or more
successive sessions, and if, before the expiry of the session immediately following
the session or the successive sessions aforesaid, both Houses agree in making any
modification in the rule or notification or both Houses agree that the rule or
notification should not be made or issued, the rule or notification shall thereafter
22
(1970) 1 SCC 665
23
AIR 1997 SC 699

Page | 14
 have effect only in such modified form or be of no effect, as the case may be; so,
however, that any such modification or annulment shall be without prejudice to the
validity of anything previously done under that rule or notification.

(2) Every rule made by a State Government under this Act shall be laid | as soon as
may be after it is made, before the legislature of that State”.

Section 19 deals with the effect of failure to place the rules before houses of Parliament.
In Jan Mohan v. State of Gujarat24, the validity of the rules framed was challenged on the
ground that the rules were not placed before the Legislature at its first session and as
such they were not valid, it was held that the rules were valid from the date on which
they were made and failure to place them before the Houses of Legislature did not affect
the validity of the rules. Also

Also in case of Waheed Hasan Khan v. State,25 court discussed the provisions of Section
2226 dealing with repeals and savings. It was held that when an Act is repealed, it is the
same thing as if it had never existed except with reference to such parts as are saved by
the repealing statute.

24
1966 SC 385.
25
AIR 1960 Bom 299
26
Section 22. Repeal and savings.—(1) The Employment of Children Act, j 1938 (26 of 1938), is hereby
repealed. 2) Notwithstanding such repeal, anything done or any action taken or purported to have been done
or taken under the Act so repealed shall, in so far as it is not inconsistent with the provisions of this Act, be
deemed to have been done or taken under the corresponding provisions of this Act.

Page | 15
 CHAPTER – III

DEVELOPMENT OF THE LAW CONCERNING CHILD LABOUR

(PROHIBITION AND REGULATION) ACT, 1986

Many industries in India have a long history of using child laborers. Over the years,
Indian courts have expanded on child labor laws, acts and constitutional rulings that
have aimed to better protect children from hazards and unfair practices.

Public interest litigation has contributed significantly to the development of the law
concerning child labor. For example, in P.U.D.R v. Union of India27 children under
fourteen were found to be among the migrant workers and contract laborers engaged in
construction work for the Asian Games. In 1982, the case was taken to the Supreme
Court by a democratic rights organization.

The court found that, at the time, construction was not on the list of prohibited
occupations for children. Drawing on the constitutional injunction against children
being in hazardous employment, the court held: ―

“There can be no doubt that notwithstanding the absence of specification of

construction industry in the schedule to Employment of Children Act 1938, no child
below 14 years can be employed in construction work and the Union of India as

27
AIR (1982) Supreme Court 1480

Page | 16
 also every State Government must ensure that this constitutional mandate is not
violated in any part of the country”.

In 1983, in Labourers Working on Salal Hydro Project v. State of Jammu and Kashmir28
the court reiterated this position when a case concerning child laborers working on a
hydroelectric project was brought before it. The prohibition of child labor in the
building and construction industry was included in the CLPRA when it was enacted in
1986. Employing children in the manufacture of matches, explosives, and fireworks has
been prohibited since 1938. Yet child labor has been rampant in these industries.

Explosions and accidents are common, and it was in M.C. Mehta v. State of Tamil Nadu29
such incident that led the Supreme Court to require a liability insurance scheme be put
in place that would cover the risk of accidents, providing compensation where risk is
not averted. This formula was repeated in a public interest litigation concerning the
tobacco industry.30 Unfortunately, there was a certain regression in the court‘s
judgment relating to the match factories in Sivakasi in Tamil Nadu, when it permitted
children to be employed in match factories in the process of packing, considering this to
be a nonhazardous aspect of an otherwise hazardous industry.

In 1996, there was a discernible change of mood in the Supreme Court when confronted
with the issue of child labor. A survey had identified eighteen child laborers in
electroplating units in Delhi. The court ordered substantial fines against employers as
penalties for employing the children. This was followed by a ―Public Notice to
Employers Employing Child Labour in the New Delhi edition of a national daily on
November 25, 1996, where the names and addresses of 230 employers, the names of
the children they employed, and the amounts of the proposed penalties were published.
The employers included shops, mechanic garages, and tea stalls, which were, at that
time, not on the prohibited list in the 1986 act. Confronted by this judicial approach, the
formality of the law had to give way to the court‘s appreciation of what would have been
the impact of curtailing the practice of employing child labor.

28
(1983) 2 SCC 181 at 191.
29
(1991) 1 SCC 283
30
Rajangam, Secretary, District Beedi Workers Union v. State of Tamil Nadu (1992) 1 SCC 221.

Page | 17
On December 10, 1996, in M.C. Mehta v. State of Tamil Nadu31a three-judge bench of the
Supreme Court revisited the issue of child labor in Sivakasi fireworks factories and
issued a land-mark decision. The court had before it the report of a committee of
advocates set up to investigate the employment of children in Sivakasi. This committee
was constituted following an accident in a fireworks factory in which thirty-nine people
had died. Acknowledging the poverty that characterized child labor and the possibility
that compulsory education may be the answer to the problem, the court ordered the
offending employer to pay compensation of Rs. 20,000 for each child in their employ.
This sum would be deposited in a Child Labour Rehabilitation-cum-Welfare Fund,
interest from which was to be used only for the concerned child. Further, given the
constitutional directive that the state has to help realize the ―right to work, the court
considered whether the state may have an obligation to ensure that when a child is
with-drawn from work, an adult in the child‘s family is provided employment. Yet, given
the large number of child workers, this could strain the resources of the state. Instead,
where it is not possible to pro-vide alternative employment to an adult, the court
ordered that a ―contribution/grant... of Rs.5000 for each child employed in a factory or
mine or in any other hazardous employment‖ be deposited in the Rehabilitation Fund
by the government. The child should then be withdrawn from employment and assisted
by the Rs. 25,000 fund or the Rs. 20,000 and alternative employment. Assistance was to
be halted if the child was not sent to school. As for nonhazardous jobs, the court charged
the inspector under the 1986 act with ensuring that children did not work longer than
four to six hours a day and that they received education at least for two hours each day.
The entire cost of education is (to be) borne by the employer.

This landmark decision had the effect of placing child labor squarely on the state‘s
agenda

31
AIR1997SC 699

Page | 18
 CHAPTER - IV

CRITICISM OF THE CHILD LABOUR (PROHIBITION AND REGULATION)

ACT, 1986

 The Government of India has enacted the Child Labour (Prohibition and Regulation)

Act, 1986 which prohibits the employment of children in hazardous work and also
regulate the conditions of work in certain other employment where the employment is
not prohibited. The Act has many provisions to be welcomed but at the same time it has
some lacunas and its own limitations. The flaws in the Act are as follows:

i. Child Labour (prohibition and Regulation) Act, 1986 covers only 10 percent of

the total working children. Moreover, the agricultural sector, whichm
contributes more than 75 percent of the child employment is not covered by the
Act. This Act is not easy to enforce in the unorganized sector because the units
are numerous and unregistered. The employer- employee relationship is
continuously changing, and frequently the unit is tiny a family-based one. Most of
these units spring up and disappear overnight and are very difficult to keep track
of in the absence of any requirement of registration.
ii. Section 3 of the Child labour (prohibition and Regulation) Act, 1986 keeps the
occupation, work, or process that is carried on by the occupier with the aid of his
family out of the purview of the Act. The intention of the Act is to exempt a family

Page | 19
 enterprise in which all or several of the members of the family are involved. It
was not intended to exempt farmed out, piece-rate work, where the home merely
replaces the factory premises. This proviso is abused by employing children in
respect of families and work experience acquired by children. This provision
helps employers to pose ‘a family members’ of the children working in their
premises and thus continue to exploit the children. When any action is taken
against any employer for employing a child, the excuses given are that ‘the child
is a relative and is helping in housework’ or the ‘child I being trained for a family
trade’ and so on.
iii. Although the Act prohibits the employment of children in certain hazardous
industries and processes, it does not define what constitutes hazardous work. It
only provides a list of hazardous occupations/ processes (list in annexure 2). As
a result, it leaves a loophole for employment of children in hitherto unidentified
hazardous occupations and processes, and the use of hazardous materials.
iv.  The law does not recognize the child as an individual being who should be the
focus of the Act. Instead, the focus is on the establishment,
employer, administration and procedures oncleansing the establishments of
child labour with no provision for the child’s rehabilitation. It does not say what
should happen to the child labourer once the employer is prosecuted.
v. The implementation of the Act depends entirely on the State’s
bureaucratic machinery. It assumes that the bureaucracy, poorly staffed and ill-
equipped as it is today, will be able to ensure that children do not work in
hazardous processes and occupations, and conditions of work in non-hazardous
settings will be upgraded. The bureaucracy is also expected to determine
whether a child is working in a non-hazardous process or a hazardous
occupation. Again, under the law, the employer is supposed to notify the labour
Department whether any children are working in his establishment. This means
that one expects those who may be guilty or proven to be guilty, to notify their
improprieties or illegal acts to the authorities. Moreover, the onus of proving the
age of the child lies with the prosecutor, and not the offender.

vi. The child labour in factories has to be dealt with by the inspectors notified under
the Factories Act and prosecution has to be launched under that Act read with
the Child Labour Act. Therefore, the officers and labour inspectors who were
Page | 20
 notified as inspectors under the Child Labour Act are not authorised to deal with
child labour in factories.

vii. The Act is not applicable to any workshop wherein process is carried on by the
occupier with the aid of his family or to any government recognised school. This
would permit many employers to escape penal provisions under the guise of
family activities32.

CHAPTER – V

REFORMS RECOMMENDED IN CHILD LABOUR (PROHIBITION AND

REGULATION) ACT, 1986

GOVERNMENT POLICY

The state government has to take concrete steps to strictly prohibit the employments of
the children in occupation, which have been under the child labour Act. Besides this, the
government should also provide financial assistance in the forms of grants-aid to the
voluntary bodies for imparting non-formal education, health care, nutrition and
vocational training to the child labour.  It is suggested that the government should ratify
the Convention No 182 and Recommendation No 190 which deal with the “prohibition
and Immediate Action for the Elimination of the Worst Form of child labour”. The
Convention was adopted in 1999 but the government has not yet ratified it.  It is
suggested that the government take up different programmes like food for education,
providing financial assistance, self employment of rescued child labour, after
completion of their study and establishment of production-cum training centres for
child labour with stipend, etc to reduce the incidence of child labour.

REHABILITATION PROGRAMME

32
Beedi rolling, Papad making, Bindi making, Incense making and Embroidery

Page | 21
Any legislation for totally prohibiting child labour amount to hardships to the poor
parents and their children unless they are rehabilitated or their families are provided
alternative source of income. Most of rehabilitation programme today aim at improving
the working environment of the child and are hence helping to perpetuate this evil. The
ultimate aim his to be the abolition of child labour and all governmental programmes
must work towards fulfilling this objective. Child labour should not be under the
jurisdiction of the Ministry of Labour. The rehabilitation programme comes under
Education Department, Health Department, and Rural DevelopmentDepartmentetc.
Coordination with these departments is often a major hurdle. Therefore a child labour
should be under the Ministry of Welfare because it should be better suited to deal with
the problem in its various dimensions. Land reforms programmes should be strictly
implemented. Land to the landless must be provided as most of the families of child
labour are landless.

HEALTH POLICY

Perhaps one of the most important among the measures urgently needed in India for
the protection of children is adequate health service at school as well as the work place.
Children are more prone to occupational risks and accidents and, therefore, should be
provided with better occupational safety and health services. Gloves and other
protective items should be provided to the total workers and pot cleaning. Efforts
should be made for making the working and living environment more hygienic and
congenial. Actions should also be aimed

WORKING CONDITIONS

The scope of Child labour (prohibition and Regulation) Act, 1986 should be extended
with a view to cover factories of all types where any kind of processing is carried on by
the owners with the help of the children. Efforts must also be made to extend the scope
of the Act to even unorganized sectors such as tea- stalls, dhabas and sweat shop etc
where children are being employed on a large scale. Apart from the occupational risks,
children need to be protected from the other organizational problem such as

Page | 22
excessively long working hours, night work, piece rate payment system, etc. They
should be provided with adequate tools and equipments and at least, the simple
protective clothing. They should also be ensured social security, including medical care
and sickness benefits.There should be periodical medical check-ups of the working
children and this practice should be enforced through proper laws, especially in keeping
the working environment hygienically free from smoke, dust etc.

WAGE POLICY

The Central Government must direct the state governments to bring the wages of child
labour at par with those of adults in pursuance of its policy of gradual elimination of
child labour. Implementation of the Minimum Wage Act also needs a lot of attention and
the state government should take action to ensure a better compliance of the Minimum
Wage Act. Employer must be required to pay minimum wage to every child, below
which no child should be employed. The minimum wage should be provided as directed
by the Supreme Court in M.C Mehta v. State of Tamil Nadu and Others33 .The owners of
unorganized sector must be directed to maintain a register of employment dealing with
the names of all child workers, their obligation to furnish this detail to the child welfare
department concern to see how far the employers are carrying out the legislation
requirements with regard to child workers.

33
(AIR 1997 SC 699)

Page | 23
 CHAPTER – VI
CHILD LABOUR (PROHIBITION AND REGULATION) AMENDMENT BILL,
2012
The Child Labour (Prohibition and Regulation) Amendment Bill, 2012 (hereforth
referred to as Bill) was introduced in the Rajya Sabha on 4 December 2012 by the
Minister of Labour and Employment, Shri Mallikarjun Kharge. The Bill is currently
under review with the Parliamentary Standing Committee on Labour. The introduction
and first review of the Bill was made on 7 February 2013.

CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986

The Bill seeks to amend the Child Labour (Prohibition and Regulation) Act, 1986,
(hereforth referred to as the Child Labour Act, 1986) which prohibits the engagement of
children under 14 years in certain types of occupations and regulates the condition of
work of children in other occupations.
The Child Labour Act, 1986 prohibits employment of children below 14 years in 18
occupations and 65 processes defined in the Schedule. such as abattoirs/slaughter
houses, automobile workshop and garages, handling of toxic and inflammable
substances, handloom and powerloom industry, mines, employment of children as
domestic workers, in dhabas, bidi-making, carpet weaving, brick kilns, cotton ginning
and processing, manufacturing of glass including bangles, manufacture or handling of

Page | 24
pesticides and insecticides, manufacture of sports goods, zari making, ragpicking and
scavenging.

COMPLETE BAN ON CHILD LABOUR, AND PROHIBITION OF HAZARDOUS WORK BY

ADOLESCENTS
The Bill introduces the term ‘adolescent’ to mean a person who is between 14 and 18
years. And, prohibits the employment of adolescents in hazardous occupations or
processes (mines, inflammable substances or explosives, or hazardous process) as
defined in the Schedule.
The Bill redefines ‘child’ to mean a person below 14 years or any age as specified in the
Right of Children to Free and Compulsory Education Act, 2009, which ever is more.
The Bill prohibits the employment of children in any occupation or processes. However,
the Bill allows the child helping his family after school hours, although this exception
does not make the exception when there is home-based contractual or outsourced
work.
In comparison to the Schedule of hazardous occupation or processes, the Bill allows for
both the addition and omission of any hazardous occupation or process, instead of the
previous addition only.

ENHANCED PENALTIES FOR VIOLATION AND MADE A COGNIZABLE OFFENSE

The Bill also enhances the punishment for employing a child labourer by increasing the
penalty to between 6 months to 2 year, and the fine of Rs 20,000 to Rs. 50,000. The
Child Labour Act, 1986 stipulated punishment from 3 months to 1 year, and a fine of Rs.
10,000 to Rs. 20,000. The imprisonment and fine can be applied cumulatively.
Similarly, the Bill imposes punishment for employing an adolescent in hazardous
occupation or processes of 6 months to 2 years, or fine of Rs. 20,000 to Rs. 50,0000 or
both.
Furthermore, in case of person repeats the offense under the Bill, the punishment has
been enhanced to 1 – 3 years, and makes the offenses punishable under this act as
cognizable.

ACCOUNTABILITY, INSPECTION AND MONITORING

Page | 25
To ensure implementation of the provision of the Bill, government may confer powers
to the District Magistrate to carry out the duties set in the Bill.
For accountability, inspection and monitoring, the Bill authorises the government to
make periodic inspection of places at which employment of children is prohibited and
hazardous occupations or processes are carried out.

CHAPTER – VII
CONCLUSION
Child labour is an international evil. It requires cumulative efforts to wipe it out. Toiling
long hours for a pittance, these little breadwinners accept exploitation as a way of life.
The government on this front has also taken a few steps. But the major determinant of
child labour is poverty. Even though children are paid less than adults, whatever income
they earn is of benefit to poor families. In addition to poverty, the lack of adequate and
accessible sources of credit forces poor parents to engage their children in the harsher
form of child labour -- bonded child labour. Some parents also feel that a formal
education is not beneficial, and that children learn work skills through labour at a young
age. These views are narrow and do not take the long term developmental benefits of
education into account. Another determinant is access to education. In some areas,
education is not affordable, or is found to be inadequate. With no other alternatives,
children spend their time working.
From the foregoing survey of cases on child labour it may be said that the Supreme
Court has taken a conciliatory position of the problem and has accepted the inevitability
of child labour in our country. In none of the cases brought before it, has the court called
for an immediate ban of child labour. The initiative shown by the court in Asiad case
prohibiting child labour from construction work even when no law provided for the
same, has not been seen in the succeeding cases, be it the M.C Mehta cases or the other
cases. Being convinced that poverty is the only cause for the continuance of child labour

Page | 26
the court has only advocated amelioration of the working conditions of children rather
than abolition of child labour. The directions of the court for the creation of welfare
fund and the compulsory insurance scheme to be financed by the employers have to be
seen for furthering that end. Once the poverty of parents is taken care of the problem of
child labour will automatically come down is too simplistic a solution to the complex
problem.
There is a plethora of laws but nothing can eradicate child labour unless there is
awareness among parents and children, which will go a long way in saving the future of
millions of working children in India. Lastly instead of blaming the supply side, we must
focus on the demand side.

BIBLIOGRAPHY

BOOKS

Cigno Alessandro, The Economics Of Child Labour, 2005, 1st Ed., Oxford University Press.

Goswami, V.G. Labour Industrial Laws, Central Law Pub. Alahabad, (2008)

Nesi, Giuseppe, Child Labour In A Globalized World: A Legal Analysis Of Ilo Action, 2008,
Ashgate Publishers.

Visalli, Gayla Reader‘S Digest: Medical Cures And Treatments, p.276.

ARTICLES

Burra, Neera. ‘Child labour in rural areas with a special focus on migration, agriculture,
mining and brick kilns,’ NCPCR

Bhakhr, Savita ‘Children in India and their Rights -Children in India and their Rights‖,
National Human Rights Commission’, New Delhi

Ferrara Federico and Ferrara, Valentina ‘The Children‘s Prison: Street Children and
India‘s Juvenile Justice System’ (2005)

ILO Worst Forms of Child Labour Convention 182 (1999) ‘Police Abuse and Killing of
Street Children in India’, Human Rights Watch Children's Rights

Page | 27
WEBSITE:-

http://www.politicalaffairs.net, Reference date 8th March, 2014, Time – 12:00 p.m.

http://www.studentsforlaw.org/resources.htm, Reference date 20 th March, 2014, Time

3:00 p.m.

http://www.westlaw.com, Reference date: 18th March, 2014 Time – 12:30 p.m.

http://indianlegalservices.com, Reference date: 1st March, 2014, Time – 6:00 p.m.

Page | 28