By Sushant Panigrahi
Child labour and poverty are inevitably bound together and if you continue to use the labour of children as the treatment for the social disease of poverty, you will have both poverty and child labour to the end of time.
— Grace Abbott
Children are future of the nation; therefore, their well-being ought to be a priority in our country. Usually, a child is not the decision maker about his/her work status. Universally, while Rights have been bestowed on them in all respects, the decision making regarding their work status is left to the adults. Despite a plethora of legislations, the life of a child is still in the hands of an adult who may use it to his/her (dis)advantage. However, the practice of child labor is widespread, worsening the lives of millions of children all over the country. The mining sector, in particular, has witnessed massive employment of child labor over a long period of time. But since the 90s the informalizations of labour sector and laxity in implementation of labour laws have ushered in what we know as “Development by stealth”.
The mining sector is seen as the most lucrative and attractive sector for foreign investment and immediate gains for the state. India has enacted and amended several laws and adopted various policies, programmes, and measures to tackle child labor in the country. However, lack of uniformity in terms of the definition of ‘child’ in the existing legislations has posed a serious challenge to tackle the issue. The key challenge to reduce child labor in India is the confusion around the definition of a child in terms of age. We argue in this short article that, defining a Child by age for factories, household work, agricultural labour, penal offenses or even marriage, has opened the floodgates for violators who could often be identified as the extractors and profiteers, of course, with the state looking conveniently the other way.
Poverty, growing demand for unskilled and cheap labor, and unequal distribution of benefit generated from natural resource have led to the massive employment of child labor in India. Despite having several laws, rules, policy, programmes, and schemes in place, the practice of child labor, especially in the mining sector, has continued as a problem.
HAQ Centre for Child Right, rightly observed that the persistence of child labor is due to the availability of working place with the inefficiency of the law, administrative system and as such, it benefits the employers by reducing general wage levels.
Lack of application of fair methodology in determining- who is a child- has been a key challenge to child rights workers in India. In fact, there is no official data (in public domain) to determine the exact number of children working in the mining industry in the county. However, studies undertaken in some states provide the magnitude of child labor in the mining industry in the county.
Magnitude of child labor in India
India is home largest child labor in the world. ChildLine India Foundation observed that one in every ten workers is a child. The number of working children in the age group of 5-14 years is 10.1 million, both main and marginal and 22.87 million children are working in the age group of 15-18 (Census 2011). The annual report-2016-17, Ministry of Labor and Employment, reveals that the number of main workers in the age group of 5-14 years in the country is 4.35 million.
The share of child labor in the mining industry is quite alarming. Owing to ineffectual enforcement and diabolical and tenuous administrative system, the mining industry has created a massive child labor force across the country. The Non-Judicial Redress Mechanisms Report, (series 11) 2016, estimated that there are as many as 3, 75,000 child laborers working in Rajasthan’s mines only.
An article carrying a story on the plight of children working in the mines in Jharkhand was published (ToI on 18th April 2016), unmasking large-scale employment of child labor in the mica mining, the apathy of the state and ineffectual regulation of existing laws and rules in the state.
The issue of child labor in the mining sector has grabbed the headlines of national dailies exposing the massive employment of child labor, violation of laws, and mining-mafia nexus in the state of Meghalaya.
The National Commission for Protection of Child Rights (NCPCR) fact-finding team, investigating the case, found the presence of large-scale child labor engaged in the coal mines area of Rymbai and Khliehriat of Jaintia Hills district in Meghalaya. (Meghalaya, by the way, comes under the sixth schedule states).
The Commission, exposing the role of district administration in promoting child labor, observed: “The NCPCR team was surprised to know the fact that the District administration is colluding to promote the child labor instead of curbing the same.”
Indian laws and inconsistency: Issues and challenges
One of the biggest hurdles standing against fighting child labour is the confusion around the definition of a child, in terms of age, in various laws dealing with child labor jeopardizing the spirit of the Acts. The age of the child has been defined differently in various existing laws e.g., the Factory Act defines a person who has not completed 15 years of age as a child, whereas as per protection of children from Sexual Offence Act, 2012, a child means below 18 years of age.
The child labor (prohibition and regulation) Act, 1986 prohibits the employment of children. However, it allows children to work with certain process being banned in certain industries below 14 years of age.
The Child and Adolescent Labor (prohibition and protection) Act, 2016 imposes a blanket ban on employment of children below 18 years of age. However, it allows children to be employed in family-based enterprises and the employment of children in most hazardous occupations like tanning, bangle-making, zari work, carpets, domestic work, e-waste and numerous.
The Juvenile Justice (Care and Protection of Children) Act, 2000 and Amendment Act, 2006, imposes an absolute ban on employment of a child below 18 years in line with international conventions on child rights.
However, in order to determine the age of the child, Government of India chooses to use the Right to Free and Compulsory Education Act, 2009, which provides free and compulsory education for the children below 14 years as the yardstick. There still exists a number of interpretations of each law facilitating the inconsistency in Indian judicial system and how it looks at Child Labour.
Do children have human rights?
This debate was put to bed a long time ago. But in the context of poverty theorists and neo-liberal economists in developing countries’ context, it still raises its ugly head in tweaking the policy framework. The wealth created by exploiting children and natural resource has never been shared with those who created it. Malnourishment is rampant, and the mortality rate of children under five among Adivasi and Dalits is significantly higher in the mining regions, particularly the fifth scheduled areas. The states with a high dependency on mining have a high percentage of malnutrition among infants and below five years of age.
Children in 2012, ‘A Statistical Appraisal’, Ministry of Statistics and Programme Implementation, Government of India, noted that the rural India, particularly the states with high dependency on mining, is witnessing more (more than 50%) malnutrition among children below 5 years as the higher percentages of stunted, wasted and underweight children were reported from rural area.
It further observed, “Anemia prevalence among children of (6-59 months) is more than 70 percent in the states like Madhya Pradesh, Chhattisgarh, Andhra Pradesh, Karnataka, and Jharkhand, which are exploiting their natural resources since ages.”
In addition, the death of children due to various diseases contracted during living and working around the mines is quite disturbing. Children working in the mines are dying a silent death due to lack of medical care and affordable facilities. However, India doesn’t have any official data on the number of death of child labor.
The Annual Report 2016-17, Ministry of Tribal Affairs, Government of India, pointed out the alarming situation of children, revealing infant mortality rate has gone up to 61.1%, whereas the mortality rate of children under five stood at 95.7%. The report further stated that the condition of tribal-infants and children are much worse than the non-tribals.
Though the literacy rate in India was found to be 74.04%, with a gender gap of 17%, the fifth scheduled areas have lower literacy rate than the non-scheduled areas (census 2011).The number of children who are unable to avail the free and compulsory education under Right to Education Act, 2009, especially in the rural areas is still high. A total of over 12.3 million in the 7-14 years age group in India are out of school (ILO, 2015). It is still a matter of concern as still so many people in India cannot even read and write, particularly the tribal children.
Furthermore, ASER annual report, 2016, p[i]ointed out that although the enrollment in the age group of 6-14 years has increased to 96% or above since 2009, in some states, the fraction of out of school children in the same age group (age 6-14) has increased between 2014 and 2016. This denotes an increasing informalization of mining and labour sector which pushes the demand for unskilled and cheap labour.
Indian laws and judiciary
Elimination of child labor demands commitment from the society e.g. family, state, civil society and those who employ children in any enterprises. And the commitment demands to be translated into action. India needs to invest more in building its social capital ensuring sufficient nutrition, education, health, and protection for its children.
Judiciary has been at the vanguard of protecting the unprotected, especially mining-affected communities, tribals, and children. In a ground-breaking case, Goa Foundation Vs Union of India, the Supreme Court observed that:
“The State Government will set-aside 10% of this balance amount for the
Goan Iron Ore Permanent Fund for the purpose of sustainable development
and inter-generational equity. This entire exercise of calculating the average
cost of extraction of ores to be paid to the mining lessees, 50% of the basic
wages and dearness allowance to be paid to the workers, 10% of the balance
amount towards the Goan Iron Ore Permanent Fund and the balance
amount to be appropriated by the State Government will be done by the
Director of Mines and Geology, Government of Goa, under the supervision of
the Monitoring Committee.”
Thus, with this, the court set an example of fair jurisprudence in the mining sector by ensuring that the rights of worst victims of mining, especially tribals and children are protected, such that the idea of social justice and equity would surely, though steadily, be achieved.
In Samata Vs state of Andhra, the Supreme Court, recognizing the plight of tribals and other marginalized communities in India, observed that:
“Minerals to be exploited by tribals themselves either individually or through cooperative societies with financial assistance of the State. At least 20% of the profits as permanent fund for development needs apart for m reforestation and maintenance of ecology.”
The judgment recognizes the law as a social justice and equity tool to create a social order removing inequality in all spheres by providing equitable opportunities and facilities to the marginalized groups and individual in the country.
Yet, in another case, recognizing the significance of gram sabha assured in the Panchayat (Extension to Scheduled Areas Act, 1996 and cultural and religious rights of tribals and forest dwellers guaranteed in the Forest Right Act, 2006, The Supreme Court observed that:
Gram Sabha has a role to play in safeguarding the customary and religious rights of the STs and other TFDs under the Forest Rights Act. Section 6 of the Act confers powers on the Gram Sabha to determine the nature and extent of individual or community rights”.
The Indian judiciary, in series of cases, ensured that the rights of the marginalized are protected by providing guiding principle of equality and social justice, in order for the government to bring about a coherent policy in the mining sector. However, implementation of judicial orders and guidelines in bringing about a new policy, which would ensure the social equity and justice, is yet to be seen in India.
While the judiciary has been playing a proactive role, the state governments have shown little or no interest lacking political will in improving child labour. Most of the state governments are pushing for maximum exploitation of the natural resource, while casually ignoring the implementation of various labour laws in their state. The landmark Samata Judgment has been grossly violated across the fifth scheduled states. Instead, States have made several attempts to dilute the spirit of judgment, thereby trying to bring in amendment to it. Despite writing twice to the state government of Meghalaya, based on the article carrying news on massive employment of child labour in the coal mines in Meghalaya, the National Commission for Protection of Child Rights (NCPCR) received no response from the state. This denotes the lack of political will among the state governments in improving the situation.
Following recommendations can be adopted in the mining sector, in order to reduce child labour in India:
- The National Mineral Policy must expand the Supreme Court’s order (in the case of Goa Foundation Vs Union of India) on principle of intergeneration equity, thereby provisioning for permanent fund to be spent for the development of children as equal shareholder across the mining regions.
- Bringing uniformity in existing Indian laws dealing with child labor is a must. The laws must expand the definition of a child by prohibiting the employment of and ensuring free and compulsory education (RTE, Act, 2009) for children below 18 years. Moreover, efforts must be made to improve the quality of education in reducing child labor.
- Being legally and morally wrong, child labour should not be entertained at all. Society should be educated on the negative impact of child labour so that it becomes an issue that is frowned upon wherever it occurs.
- The District Mineral Foundation Act, 2015 must ensure that the rights of the children are protected thereby mandating special provisions for funds to be spent for children in the mining areas.
- Steps must be taken for creation of job opportunities by establishing skill-based training institutes and vocational training centers by the government to reduce unemployment and to increase the household income of the poor population across mining affected regions.
- Empowering poor through knowledge and income generating projects could go a long way in reducing child labor. Parental literacy can also play an important role in ensuring the rights of children are upheld.
In the darkest corners of muted humanity, starvation, malnutrition and child labor flourishes in India. The future of the nation is dying silently. Child labor refers to deprivation of basic human rights; a healthy life, education, health, and an enabling environment for development.
India has a plethora of laws, policies, and schemes in place to combat child labour. However, the result is ineffective, far from eradicating child labour due to weak enforcement agencies and poor governance. Therefore, the need of the hour is to have a wholehearted commitment with a holistic approach to eradicate child labor.
Child labor cannot be eliminated, without eliminating poverty, just by brutal enforcement of laws. Enforcement of laws must go hand in hand with the policies, various programmes and schemes in the manner it envisages to, by enabling children to enjoy their childhood.
- Srivastava Kalpana, “Child labour issues and Challenges”, Industrial Psychiatry Journal, US National Library of Medicine, National Institute of Health
- Buried Childhood-Chil labour in Mines Pit
- Limave Sudeep, Pandey . Milind , “A study of child labour in India-Magnitude and Challenge”
- NCPCR, ‘Child labour situations in Coal mines, Pits and Rate Holes of Jaintia Hills’, a fact-finding Report 2012
- Dash Anjali, Relates on Tribal Education and Health: Evidence from Rural Odisha, India, International Research Journal of Social Sciences
- Gupta Naresh, ‘”Child labour in India; a brief study of law and its implementation”, International Journal of Advanced Research in Management and Social Sciences
- ‘NCPCR’, “Abolition of Child labour and Making education a Reality for Every Child as a Right”
- Census 2001& 2011
- Ministry of Labour and Employment, Government of India ,“Annual Report -2016-17
- ChildLine India Foundation, ‘Annual Report’ 2016
- United Nations International Labour Organization, ‘Child Labour in South Asia, Study Report-2015
- ‘Non-Judicial Redress Mechanisms Report’, (series 11) 2016, Business and Human Rights
- ASER, ‘Annual Report-2016’
- K Bhanumati, Gangually Enakshi, Dhatri Resource center for women and Children-Samata, HAQ-Center for Child Rights, India’s Childhood in the ‘Pits’, A Report on the Impact of Mining on Children in India
- Sunavala Nergish , ‘The lost childhood of India’s mica minors’, Times of India, 14th April 2008
- Children in 2012, ‘A Statistical Appraisal’, Ministry of Statistics and Programme Implementation, Government of India
- Child labor (prohibition and regulation) Act, 1986
- Child and Adolescent Labor (prohibition and protection) Act, 2016
- Mines Act, 1957
- The Juvenile Justice (Care and Protection of Children) Act, 2000 and Amendment Act, 2006
- Right to Free and Compulsory Education Act, 2009