The Government of India should be credited for tabling two historic pieces of legislation in parliament, both of which will help achieve the twin objectives of minimizing the exploitation of child labor while also helping working women by increasing their maternity benefits.
The International Labor Organization had adopted two conventions dealing with child labor: Convention No. 138 on the minimum age for admission to employment and work, and Convention No. 182, which deals with the worst forms of child labor. Unfortunately, India is not one of the 169 countries that have ratified Convention No. 138, or the 180 that have ratified Convention No. 182. Similarly, India is not party to the ILO’s Maternity Protection Convention (No. 183), which deals with maternity benefits for working women. The convention prescribes maternity leave of not less than 14 weeks; surprisingly, only 32 countries have ratified this convention.
The Child Labor Amendment Act
India’s Child Labor (Regulation and Prohibition) Amendment Act 2016 was passed by both house of parliament. The legislation, which received the president’s assent on July 29, 2016, has now become a law.
The new law aims to remove the anomalies of the Act of 1986 by introducing three important amendments. The first amendment prohibits the employment of children up to 14 years of age, except in exceptional cases where they have been permitted to work in family enterprises and farms, after school hours. The second amendment deals with the employment of children between 14 and 18 years of age in hazardous occupations, and the third amendment provides for a strict penal provision of imprisonment and fines for those found violating the law. Those found employing the children below 14 years old will now face imprisonment for a term which shall not be less than six months but which may extend to two years, or a fine which shall not be less than 20,000 rupees ($300), but which may extend to 50,000 rupees ($750). The act also provides for setting up a Rehabilitation Fund for the rehabilitation of children, especially those who are illegally employed in mines and other sectors.
Although the steps taken by the government for protecting the rights of children are laudable, there are a few loopholes in the bill, especially with regard to the employment of the children in family enterprises. The United Nations International Children’s Emergency Fund (UNICEF) has voiced its concern over the definition of “family work,” and urged India to exclude this clause from the proposed law. UNICEF worried the exception would legitimize family work, thus allowing for the continued exploitation of children under 14.
Moreover, the bill is lenient on family enterprises for their first offense. This lacuna has also been pointed out by Bachpan Bachao Andolan (BBA) founder and Nobel Peace prize laureate Kailash Satyarthi, who feels that the employment of children in family enterprises would prevent children from going to school, apart from leading to the further “victimization of children.” The bill, according to him, contravenes their most fundamental right to a childhood and their entitlement to live a life with dignity as guaranteed by the constitution and the UN Convention on the Rights of the Child, to which India is a signatory.
It must also be realized that to expect young children to attend school and then work in the family business is asking too much. If children are forced to put in long hours both at school and in the family business, it is more than likely that they would drop out of the school, as their first priority would be supplementing the family income. Such a scenario contravene Article 21-A of India’s Constitution and the Right of Children to Free and Compulsory Education Act, 2009 that makes schooling compulsory for all children from six to 14 years old. The government should consider abolishing the employment of children below 18 years of age, which will be in sync with the Right of Children to Free and Compulsory Education Act, 2009.
As per the 2011 census, there were over 33 million children employed as child laborers in India, almost 35 percent of the country’s underage population. Although the Child Labor (Prohibition and Regulation) Act, 1986 was enacted to prevent children from being exploited, the children continued to be employed in many unorganized sectors, mainly because of poverty and poor enforcement of the law. Besides, hundreds of incidents of child trafficking were reported.
The untrammeled employment of child labor in India is largely due to poverty. Many families encourage their children to help them with their chores or find employment in the unorganized sector in order to supplement the family income. It is for this reason many children, unable to work long hours, prefer to drop out of the school. This situation will continue until the government takes effective steps in improving the economic conditions of marginalized families, especially those in the agriculture sector.
What is the way forward? Because of social inequality, it is virtually impossible to stop children from working in family enterprises, especially those engaged in agriculture. The government should consider banning employing children under 18 years old in accordance with the International Labor Organization (ILO) Conventions 138 and 182 so that they are compulsorily sent to schools.
Although it would be a Herculean task to prevent children from working in family businesses because of widespread poverty, the only way out for the central and state governments is to provide a monthly stipend for attending school. This income will help parents supplement their family income and they will be encouraged to send their children to schools. Moreover, the children can also benefit from the midday meal programs offered by many schools.
The Maternity Benefits Amendment Bill 2016
In addition to tackling child labor, India is also hoping to encourage women to work, by extending maternity benefits. As per a survey conducted by the Confederation of Indian Industries’ Women’s Network (published in 2015), 37 percent of female workforce would prefer to leave their jobs due to the inadequate leave provided in the Maternity Benefits Act, 1961.
In order to address the problems being faced by working women, and also to reduce their attrition as a result of pregnancies and help them during both the pre- and post-natal period, the government has sought to amend the Maternity Benefits Act, 1961, by proposing an increase in maternity leave from the existing 12 weeks to 26 weeks under the Maternity Benefits Amendment Bill. The new amendment is a definite improvement over the 14 weeks of leave recommended by ILO Convention No.183. This will go a long way in protecting the interests of working women, as it will significantly reduce the number of women leaving their jobs. In many Western countries, there is also a provision for paid paternity leave, allowing fathers help to take care of their spouse and the child. India should also consider a minimum of 10 days paid paternity leave.
Some small companies, employing 10 or fewer persons, have expressed concerns that it would be financially unviable to employ a temporary worker during the period when their female employee is on leave. As the amendment also provides for 12 weeks of working from home for nursing mothers, these establishments can persuade female employees to work from home without affecting their business. Another important amendment relates to a mandatory provision of crèches or daycare in all establishments with 50 or more employees.
The upper house of the Indian parliament has passed these amendments and there is no reason why the lower house will not do the same.
In sum, both these legislations are historic in nature. The new child labor act will go a long way toward eliminating the pernicious practice of employing minors, thus depriving them of the joys of childhood, while the amendments proposed to the Maternity Benefit Act will reduce the present rate of attrition among working women. Over 1.8 million women employed in the organized sector will stand to benefit with the proposed amendments in the act.
K.S. Venkatachalam is an independent columnist and political commentator. His articles have been featured in many leading newspapers.