At first look, the Child Labor (Prohibition and Regulation) Amendment Act, 2016, passed by Parliament, appears to be dynamic. The objective of this act is to preclude child labour in all forms. Furthermore, the act also prohibits labour by adolescents in hazardous occupations wherein adolescents are those who are in the age group of 14-18 years.
The amendment act has several loopholes. Firstly, it has amended the schedule which mentioned the hazardous activities. In the original schedule, there were 83 hazardous activities. However, under the new amendment, there are only three including mining, explosives and occupations mentioned under the Factory Act, 1948. Apart from this, Section 4 of the act provides that the hazardous activities can be removed by the government authorities at their own judgement. Secondly, it permits children less than 14 years of age to contribute into non-hazardous family enterprises. This severely undermines the object of Article 21-A as well Right to Education Act, 2009. Thirdly, the family enterprise concept vindicates the proprietors and administrators of global supply chains from any lawful commitments of reasonable wages, safe work conditions and social insurance to the genuine end-line children who work in segregated home-based units. The amendment, instead of ending child labour, provides a leeway for it by drafting legislation in a loose manner. Not only do the new amendments reverse the gains of the 1986 Act, but actually contradict the Juvenile Justice (Care and Protection) of Children Act of 2000 that makes it punishable for anyone to procure or employ a child in a hazardous occupation .
Amendment Act as violative of Constitutional provisional and International Conventions.
Eighty-sixth amendment, 2002 added Article 21-A in the Indian Constitution. Article 21-A makes it mandatory on State’s part to provide free and compulsory education to children of age six-fourteen years. Similarly, Article 24 of the Constitution provides that no children below the age of fourteen years shall be employed in any factory or mine or engaged in any other hazardous employment. Direction for free and compulsory education for children has been provided under Article 45 of the Constitution. By amending the Schedule pertaining to hazardous activities, the amendment has violated the spirit of Article 21-A. In fact, the act aims to accomplish opposite of what it claims to do.
India has not ratified International Labour Organization’s Convention 138 on Minimum age of employment. It has not ratified Convention 182 on Worst Forms of Child Labour either . The only international convention relating to child labour which has been ratified by India is Convention on the Rights of the Child, 1989.
State should act as a legitimate actor in curbing the menace of child labour instead of paving way for it. The state is granted legitimacy in the eyes of the national and international community, and it must ensure that the Right to Education is complied with, in its entirety, so that the next generation gains access to basic advantages associated with literacy .