LOOMING CHILD LABOUR CRISIS IN INDIA: STATE OBLIGATION TO PREVENT IT AND THE WAY FORWARD
"History will judge us by the difference we make in the everyday lives of children"
- Nelson Mandela
Governments across the globe have eased the lockdown in their respective countries to spur economic activities. The situation is no different in India with widespread job insecurity and a looming economic recession forcing vulnerable families to take up hazardous and often exploitative jobs. Currently, around four billion people globally—primarily menial job workers—lack social protection[i]. It is a foregone conclusion that a majority proportion of this population is based in sub-Saharan Africa, Latin America, and the Asia-Pacific region.
The ILO report titled "COVID-19 and child labour: A time of crisis, a time to act" [ii] – suggests that a single percentage point rise in poverty leads to a 0.7 percentage point increase in child labour. The report further highlights that girls are particularly vulnerable to informal labour and domestic work, exploitative agricultural work, and gender-based violence. In India, lack of social security, closure of educational institutions, and relaxation in labour laws can collectively exacerbate the child labour crisis[iii] and disproportionately affect children from the marginalized communities; therefore, adequate policy changes and creating state obligation is of paramount importance.
The following three interlinked factors are most likely to contribute to the growing cases of child labour in the country:
-Lack of Social Security:Limited financial credit[iv] to the low-income families has created desperation to seek maximum jobs for their family members, including odd menial jobs. Subsequently, parental unemployment has led to children taking up informal jobs to supplement their family income. Indian labour job market is mostly unorganized and subjects labourers to long working hours and bare minimum safety and health measures. Children who enter the job market are expected to get acclimatized to the work environment, which is harmful to their physical and mental health.
-Closed Education Institutions: Credit crisis means a lesser investment in the children's schooling and subsequently keeping them out of school. The 2019 ASER Report[v] suggests that the percentage of out-of-school ('OOS') children amongst the age group of 15-16 is 12.6 and 13.5 percent for boys and girls. Children who stay out of school for a prolonged period are less likely to return to school; therefore, their timely integration in the school system is crucial.
'OOS' children often seek jobs in the informal sectors like construction, manufacturing, and agricultural farms. On similar lines, Sec. 4 of the Right of Children to Free and Compulsory Education Act[vi] creates an obligation on the schools established by state and local authorities to ensure that OOS children are integrated into the school system.
-Relaxed Labour Laws: India recently witnessed a huge exodus of migrant labourers towards their hometowns. Subsequently, some major labour laws were diluted[vii] by Uttar Pradesh, Madhya Pradesh, and Gujarat to boost industries and create local employment. Temporarily, relocation of labor laws is highly problematic because it is not only unconstitutional but also likely to aggravate the child labour crisis in the country. The state government of Uttar Pradesh through the Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020[viii] suspended some of the most prominent labour laws in the country. The absence of these laws essentially means degrading, exhausting, and dehumanizing work conditions for thelabourers.
As of now, there are sufficient legislations like The Child Labour (Prohibition and Regulation) Act, and The Right of Children to Free and Compulsory Education Actwhich prevent children from hazardous occupations and also set an age limit towards it; however, the relaxations made to the labour laws are likely to have an overarching effect over the former legislations. Exhausting and degrading work conditions mean that labourers will seek help from their children who are less likely to deny their parents due to disruption in their schooling, as outlined above. Furthermore, children often complement their mother's work, and even greater, in case of a paternal disability[ix] or death, which is a likely possibility during the current pandemic.
Legal Validity of the Reforms Made
Striking off the Industrial Disputes Act means shunning away from the rule of law and that disputes will now be settled privately on the streets, inherently favoring the employer or the contractor over the labourer. The only retained clause in the Factories Act is the "safety and security" provisions. This excludes health hazards and makes the labourers prone to unsanitary and dehumanizing work conditions. The right to a safe work environment comes under the wide scope of Article 21 of the Constitution, as was held in the Occupational Health and Safety Association of India v. UOI[x]. This also goes against Article 43 of the Constitution, which directs the state to secure a decent standard of working conditions.
Since the labour laws are an entry in the Constitution's concurrent list, the states need to seek the consent of the Union before implementing these provisions, else can be deemed unconstitutional under Article 254. Furthermore, the Trade Unions Act's suspension is a violation of the basic fundamental right to form associations under Article 19(1)(c) of the Constitution. It can be tested in the court of law. Labours form the Indian economy's backbone and deserve a humanizing work environment, and the proposed changes do quite the contrary. The states need to realize that India is a signatory to ILO Convention No 144, which enjoins signatories to hold tripartite consultations between the government, employers, and workers, overriding which can have serious repercussions.
International Obligation for maintaining child labour laws
The reforms made in the labour legislation will negatively affect the working conditions of the child labourers. However, it becomes important for India to secure children's rights because it has ratified Convention 138 and 182 of the International LabourOrganisation ('ILO') which allow setting a minimum age limit of 14 years for the developing countries and prescribes for the elimination of worst forms of child labour respectively.
India has also ratified the International Convention on the Rights of the Child, which states that member nations should end all exploitative and degrading labour jobs. If India's complaint goes to the ILO, the supreme body can set up an inquiry commission to investigate the claims and even take actions against India if proved guilty of violating these conventions. The altered legislations are explicitly poignant; however, the state governments can still backtrack these legislations to create a conducive work environment for the labourers and keep their children out of such hazardous occupations.
Solutions and Recommendations
Increasing social security[xi] is the primary measure that can mitigate the crisis. Initiating cash transfers to the poor, providing optimal health care facilities, and maintaining food security is essential for creating a safe and humanitarian environment for the workers and incentivizing them to return to their prior jobs at the earliest. The gradual but safe reopening of the schools should be prioritized because, even though, online classes are taking place, only 8% households[xii]in India with members aged between five and twenty-four have access to a computer and an internet connection which disproportionately excludes children from the vulnerable sections of the society.
Further, fiscal policies like tax exemptions and transferring benefits to the unemployed can be prioritized to reduce marginalized families' vulnerability. The government needs to develop a Standard Operating Procedure ('SOP') on the health and safety of the labourers which can include guidelines on social distancing, wearing masks, and public sanitation. A 'whole-of-society' approach needs to be taken to reach a tripartite agreement between the government, the employers and the workers.
The Year 2021 marks the Year for the Elimination of the Child Labour. If timely measures are not taken, all prior efforts to secure a Sustainable Development Goal ('SDG') target of 8.7 will go in vain. Effectively ending child labour by 2025 will only remain a far-fetched reality. Children's rights are the worst hit in any global crisis including pandemic; therefore, preventing their exploitation is equivalent to maintaining the fundamental values to a dignified human life. The government and the concerned stakeholders need to work in consonance to create sustainable policies aimed at the primary stakeholders— the vulnerable children.
Institute of law, Nirma University
[i] International Labour Organization, 'ILO: 4 billion people worldwide are left without social protection' (International Labour Organization, 29 November 2017) <https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_601903/lang--en/index.htm> accessed 17 July 2020
[ii] International Labour Organization and United Nations
Children's Fund, 'COVID-19 and Child Labour: A time of crisis, a time to act',
ILO and UNICEF, New York, 2020. International Labour Organization and United Nations Children's Fund, 'COVID-19 and Child Labour: A time of crisis, a time to act', ILO and UNICEF, New York, 2020
[iii]Sravani Sarkar, 'COVID-19 pandemic may cause spike in child labour: CRY' (The Week, 12 June 2020) <https://www.theweek.in/news/india/2020/06/12/covid-19-pandemic-may-cause-spike-in-child-labour-cry.html> accessed 17 July 2020
[iv] Jawhar Sircar,' A Long Look at Exactly Why and How India Failed Its Migrant Workers' (The Wire, 29 May 2020) <https://thewire.in/labour/lockdown-migrant-workers-policy-analysis> accessed 18 July 2020
[v] Annual Status of Educational Report (Rural) 2019, 14 January 2020
[vi] S 4, Right of Children to Free and Compulsory Education Act of 2009
[vii] Roli Srivastava and Anuradha Nagaraj, 'Workers' rights at risk as Indian labour laws face post-lockdown challenge' ( Reuters, 13 May 2020) <https://in.reuters.com/article/health-coronavirus-india-workers/workers-rights-at-risk-as-indian-labour-laws-face-post-lockdown-challenge-idINL4N2CU30Y> accessed 18 July 2020
[viii] Uttar Pradesh Temporary Exemption from Certain Labour Laws Ordinance, 2020 <https://www.livelaw.in/pdf_upload/pdf_upload-374550.pdf> accessed 18 July 2020
[ix] Supra n 2
[x] Occupational Health & Safety ... vs. Union Of India & Ors W.P. (CIVIL) NO.79 OF 2005
[xi] World report on child labour: Economic vulnerability, social protection and the fight against child labour /
International Labour Office. Geneva: ILO, 2013
[xii] Protiva Kundu, 'Indian education can't go online – only 8% of homes with young members have a computer with net link' <The Scroll, 5 May 2020) <https://scroll.in/article/960939/indian-education-cant-go-online-only-8-of-homes-with-school-children-have-computer-with-net-link> accessed 17 July 2020