Centre's proposed amendments in Child Labour, JJ law imperfect: Activist

The National Democratic Alliance, which is in power at the Centre, has recently proposed crucial amendments in two major laws - Child Labour Act and Juvenile Justice Act – concerning the large population of children in India. While some hail these amendments, there are others who find them flawed. In an exclusive interview with Tarun Khanna of Zee Media Group, Enakshi Ganguly Thukral, co-founder of HAQ-Centre for Child Rights argues that the amendments proposed in the two laws are imperfect.

Tarun: Let’s begin with the Child Labour Act first. On what grounds do you hold that the amendments in the bill are imperfect?

Enakshi: The need for changing the Child Labour Act 1986 (CLPRA) that allowed children of all ages to work in what was classified as non-hazardous occupations and processes has been a long standing demand of all child rights activists. Once the Right to Education (RTE) was made a fundamental right, and with the passing of the Right to Free and Compulsory Education Act (2009), this demand became even louder as the two laws were not in sync with each other.

Hence, the move to change the CLPRA in 2012 and then again in 2014 was a welcome step. Except that with the inclusion of the exception in Section 3 and the substitution of the Schedule in 3A has taken away all the good and progressive move the government was promising to children.

The exception in Section 3 in the law, which allows children to work in family occupations, is a way to keep the caste system intact. Like, for a potter's son/daughter to be a potter, a weaver's child to be a weaver, and in the same line of thinking, a scavengers child to continue picking up the middle class shit, especially since scavenging is not listed as hazardous occupation.​​

In fact, the list of hazardous occupations for all children up to the age of 18 years has now been reduced to: Mines, inflammable substances or explosives and hazardous process as assigned to it in clause (cb) of the Factories Act, 1948 instead of the 16 occupations and 65 processes in the 1986 Act. So, children in the 14 -18 year age group can now not only be employed in all those occupations and processes that had since 1986 been added to the schedule, they can also be employed in many new extremely hazardous occupations that are coming.

Are we progressing or regressing in our laws? Who are we fooling?

Tarun: Shouldn’t it be taken from the perspective of engaging children in some kind of activity wherein they can learn some skills rather than just attaining theoretical knowledge?

Enakshi: Of course, learning a skill is very important for children. But isn’t it important for all children?

Besides, why is it that the onerous task of preserving social fabric and culture of this country is always on the back of women and children? If all these skills are so intrinsic for learning then they should be included in the school curriculum so that all children can learn them and can make a choice out of them. But, unfortunately, that is not the spirit of the Act.

This clause will only ensure that poor children continue to work. We all know how large and ‘extended’ the concept of family is in India. We have seen even in the CLPRA 1986 how children were exploited misusing the ‘family based occupation’ clause.

All this is nothing but keeping the unscrutinised and the unregulated informalisation of labour alive, so that the corporates can ‘Make in India’ without having to deal with the labour unions and the stringent labour laws.

The fact is that our attitude towards the existence of child labour is seen as normal and, unless it is visibly hazardous and horrendous, we think it is fine and even find excuses for it.

Once again the government is saying it is “striking a balance between the need for education for a child and his socio-economic condition and the social fabric of the country…”

It’s a shame for the fastest growing economy of the world to have a very large number of innocent children employed as child labours and justifying it as a social reality, which must be changed. Laws are meant to be aspirational and not reflecting social realities.

Such amendments are justifying the need to continue to allow children to work. Indeed, children are being burdened with additional responsibilities of the adults. And, when these children emulate the adults, as they are bound to, we say children today mature faster. And, in case, they commit serious crime, we say ‘adult time’ for ‘adult crime'.

Tarun: How do you perceive the terms ‘hazardous’ and ‘non-hazardous’ occupations mentioned in the proposed bill?

Enakshi:The proposed bill allows children below 14 years to work in certain non-hazardous occupations - family-owned enterprises and the entertainment industry. This could lead to more children in unregulated conditions in BT Cotton, more children trafficked to work in home-based environment as nobody will check whether they belong to the same family or not and whether they are working after school hours or not. If adopted, more invisible forms of child labour and their exploitation will go unchecked.

As for those in 14 -18 year age bracket, they could still be trafficked for domestic labour. This may be checked, but how? Nobody knows since the bill does not answer such questions.

Furthermore, there is no provision in the bill to deal with child trafficking, given that many children in the labour force are trafficked. It would still be difficult to convince a policeman that even if a particular case is not of child labour under the new law, it could still be a case of trafficking.

There are many studies, which claim that when children are burdened with economic responsibilities before their age, they become unemployable very soon because of the toll this takes on their health. This further compels them to push their children into work, perpetuating a vicious cycle of poverty and child labour.

Tarun: The outrage over Nirbhaya rape case has not settled down yet and the government has made amendments in the Juvenile Justice Act, respecting the popular sentiments. Why do you oppose it?

Enakshi: Children today have much greater access to information. They are more exposed to consumerism, violence that the media and technology beams to them. But that does not make them more mature or enable them to make informed choices. It is their lack of capacity to process information, and use discretion that results in deviant behaviour. Are we going to penalise them for their lack of capacity to exercise discretion? What then should be our role as a society?

Juvenile justice does not mean the offending child ‘must walk free’ as it is being projected fallaciously by the society and the media. It only means that the child must be held responsible and accountable for the offence he/she has committed in a separate justice system so that the children have a second chance to reform and re-integrate into the society. The whole philosophy of the juvenile justice system is based on the principle of “fresh start”. Hence investing time, efforts and resources in reformation is a critical component so that the child who has offended realises his/her mistake, is made to take corrective steps and enabled to re-integrate into the society as a responsible individual without any stigma.

The present law proposes to send some children in the 16-18 year age group into the adult system, which is totally antithetical to the spirit and philosophy of the JJ system. In fact, if the law as proposed is enacted, we will have more children emerging from the world of crime, who will be disqualified from certain types of employment, leaving them stigmatized for life, deprived of avenues of employment and reintegration.

Tarun: So, you think that a stringent legislation to deal with the juveniles involved in heinous crimes will not do any good to the society?

Enakshi: This is based on the fallacious assumption that extreme punitive punishments act as deterrent. Have capital punishments awarded to the adult rape convicts reduced the incidences of rape?

It must also be known that frequently quoted examples of incarceration of children, especially from the USA, are failed examples.

The transfers, as provided by the Bill, will ensure that a child offender turns into a hardened criminal by spending 7 to 20 years in the company of another hardened criminal while growing up as adult. Various studies conducted in America, after 25 years of transfer system, have shown that children transferred to adult criminal justice system commit more serious offences later in life compared to those children who were dealt under the Juvenile Justice System.

The tragedy is that India had one of the most progressive laws on JJ in the world, of course, its implementation was tardy and hence the results of this law were not good. Today, India is reversing its own progressive law instead of improving it. Is it not a tragedy?