CHILD IN PAIN IS NO GAIN – A CRITICAL REVIEW OF SEXUAL HARRASEMENT OF CHILDREN AND CHILD LABOUR IN INDIA

CHILD IN PAIN IS NO GAIN – A CRITICAL REVIEW OF SEXUAL HARRASEMENT OF CHILDREN AND CHILD LABOUR IN INDIA

– Prabhat Kumar

Student, B.A. LL.B., Indore Institute Of Law

– Sneha Sharma

Asst. Prof., Indore Institute Of Law

ABSTRACT

Scope and objective of study

The write up aims to criticallyevaluate the various forms of sexual exploitation ofchildren and the concept and various forms of child labour prevalent in India and all over the world… To answer the above question the objective of the paper thus can be narrowed down to:

• Forms and fields of sexual exploitation of children with specialreference to commercial sexual exploitation of children

• History of Child labour and various ugly facets related to it. Measures taken to prevent the same through legislations and constitutional mandate.

Research Methodology

The methodology sought to be adopted for this paper is largely analytical and descriptive and the sources are mainly secondary relying on books, magazines, journals, newspapers and online databases.

Mode of Citation

The Researcher have used a Uniform Mode Style of Citation throughout his Project.

Style of Writing

The Researcher has made use of an analytical and descriptive style of writing. There has been an attempt to explain the concepts where ever found necessary. The attempt was to be lucid and brief.

INTRODUCTION

‘Child is the father of man’, quoted William Wordsworth. The Twenty first century brings with it some of the dark realities of the last century with respect to the sexual exploitation of children. Worldwide, untold numbers of children are systematically deprived of their human rights, dignity, and childhood through child prostitution, child pornography, and other sexploitation. Many of these children are routinely subjected to rape, beatings, displacement, drug addiction, psychological abuse, and other trauma. The benefits ofeconomic globalization, internationalization, and free trade have brought with them an unanticipated set of social problems. Among them is what appears to be a dramatic increase worldwide in the incidence of child sexual exploitation including the commercial sexual exploitation of children. Child pornography, juvenile prostitution and trafficking in children for sexual purposes have emerged as significant problems on the international stage as well. So, too, has child sex tourism. Child sex tourism plays a major role in the child sex trade as prostituted youth are routinely lured or abducted into sexual slavery and sex-for-profit.

For example an international conference was held in Sweden in 2005 June and its primary concern was the prevention of sexual exploitation of children world wide. Much of its focus however was on the condition of children in developing countries, countries that are now being targeted by multinational corporations for large scale investment as part of the so called new global economy.

The conference drew international attention to the matter of the international sex trade; the use of young girls and boys as prostitutes in countries such as India, Pakistan, Philippines, Thailand, etc and the booming business of sexual tourism. Sexual tours of developing countries are organized for NorthAmerican, European and Japanese businessmen. These tours have been a booming business for the past twenty years, despite the very real dangers of sexually transmitted diseases and AIDS.

There is a direct economic link between sexual tourism and the exploitation of developing countries by multinational corporations based in industrial capitalist countries such as the United States, Germany and Japan. While the news media focused on the sensational exploitation of children in third world countries during the conference, they did not make a clear link between child sexual exploitation and child labour. However many representatives at the conference, including representatives of the International Labour Organization (ILO), did make this link.

And the link is clear. As developing countries welcome increased foreign investment and major corporations move operations out of North America, Nike is a good example, they move into cheap labour zones in LatinAmerica, Asia, and Africa. As the urban metropolitan areas in these countries develop a new industrial base traditional rural agricultural economies in these countries are destroyed. Traditional subsistence farming and manufacturing are destroyed and families are forced to send their families to the city to work. Money earned in the city is then sent back to support the family. In many cases children sold through brokers to work, whether that work is in a Nike soccer ball factory, a rug plant or textile mill or in a brothel matters little. In fact the wages differ little as well whether one works in a factory or a brothel.

While the patriarchal traditions in many of these countries places less value on young girls and women, conversely young women and children are highly valued in certain industries for their abilities, not skills, such as the ability to do fine stitching for rugs, shoes and soccer balls. CBC Witness aired a special one hour documentary on Nepalese girls sold by their fathers to brokers who then sold them to brothel owners. As the documentary showed these are the same brokers who also buy children for work in the rug industry in Pakistan and India. Which ever business will pay the broker the best price gets an indentured child worker

EXPLOITATION OF CHILDREN: Various Facets

Sexual Exploitation and Sexual Violence is umbrella terms, encompassing a variety of harmful and sexually abusive behaviours. There is no one acceptable definition of child sexual abuse or exploitation. It is usually divided into three major types:

a) physical abuse

b) sexual abuse

c) emotional maltreatment / neglect

Physical abuse of a child includes any non accidental physical attack or physical injury, including minimal as well as fatal injury, inflicted upon the child by the child’s caretakers.

Sexual abuse involves forcing or enticing a child to take part in sexual activities, whether or not the child is aware of what is happening. It is a series of interactions and a relationship between a child and an older or more knowledgeable child or adult where the child is used as an object of gratification for an older child’s or adult’s sexual desires. Uncontrolled and uncontrollable ‘sexual need’ is often used as a rationale for abusive sexual violence.

Emotional maltreatment or neglect can be defined as negligent treatment of the child under the specific age prescribed for the children by the given society by a person who is responsible for the child’s welfare, upbringing and care under circumstances which indicate that the child’s health or welfare is harmed or threatened thereby.

These three categories can be further studied into many different heads as enumerated below:

COMMERCIAL SEXUAL EXPLOITATION refers to the sexual abuse of children in exchange for a payment of some kind. This can be money, but can also be for favours or other benefits such as food, protection or shelter. There are three primary and interrelated forms of commercial sexual exploitation of children:

i) prostitution,

i) pornography, and

iii) trafficking for sexual purposes.

CHILD PROSTITUTION occurs when someone benefits from a commercial transaction in which a child is used for sexual purposes. Some of those who may benefit from such transactions include pimps, other intermediaries, parents or certain business sectors, such as hotels. A child is also a victim of prostitution when he/she engages in sex in return for basic needs such as food, shelter or safety, or for favours such as higher grades at school or extra pocket money to purchase consumer goods. Typically in emergency situations, children are prostituted by unscrupulous adults in exchange for essential needs or for money to pay for such, or to allow passage across borders or into safe / restricted areas.

CHILD PORNOGRAPHY refers to any representation, by whatever means, of a child engaged in real or simulated sexual activities or the representation of the sexual parts of a child. The main characteristic of child pornographyis that it is produced for sexual gratification. Child pornography includes photographs, negatives, slides, magazines, books, drawings, recordings, movies, videotapes, computer disks or files and images stored on mobile phones.

TRAFFICKING refers to the cross-border or internal recruitment, transportation, transfer, harbouring or receipt of children (and adults) for exploitation. Children trafficked for any purpose are highlyvulnerable to sexualabuse and exploitation. Sometimes children are trafficked with their and / or their family’s consent, and sometimes they are tricked or coerced or abducted. However, as with all forms of sexual abuse and sexual exploitation, the question of consent is irrelevant.

CHILD SEX TOURISM is the commercial sexual exploitation of children by men or women who travel from one place to another, either to another country or to a different part of their own country, and once there engage in sexual acts with children. Child sex tourists may have a specific preference for children as sexual partners or they may take advantage of a situation in which children are made available to them for sexual exploitation.

Diagrammatic representation of forms of abuse against children 1

COMMERCIAL SEXUAL EXPLOITATION OF CHILDREN

The commercial sexual exploitation of children has been defined as one of the worst forms of child labour by the Worst Forms of Child Labour Convention of the International Labour Organization (ILO). This convention provides that countries which ratify it must eliminate Commercial Sexual Exploitation of Children without delay. It was adopted in 1999.The Convention was drawn up after the first World Congress against Commercial Sexual Exploitation held in Stockholm in 1996. Commercial Sexual Exploitation of Children was defined in the declaration adopted at this congress as ‘sexual abuse by the adult and remuneration in cash or kind to the child or a third person or persons. The child is treated as a sexual object and as a commercial object.’ Commercial Sexual Exploitation of Children includes the prostitution of children; child pornography; and other forms of transactional sex where a child engages in sexual activities to have key needs fulfilled, such as food, shelter or access to education. It includes forms of transactional sex where the sexual abuse of children is not stopped or reported by household members, due to benefits derived by the household from the perpetrator. Commercial Sexual Exploitation of Children also potentially includes arranged marriages involving children under the age of 18 years, where the child has not freely consented to marriage and where the child is sexually abused. The causes of Commercial Sexual Exploitation of Children are complex and patterns differ among countries and regions. For example, in some areas the commercial sexual exploitation of children is clearly related to foreign tourism, in others it is associated with the localdemand. In most countries, girls represent 80 to 90 per cent of the victims, although in some places boys predominate. While it is practically impossible to know the true extent of the problem, given its hidden and illegal nature, ILO global child labour figures for the year 2000 estimate that there are as many as 1.8 million children exploited in prostitution or pornography worldwide. While the age that a child becomes involved may be quite young, 15 to 17-year olds are most affected.

The International Programme on the Elimination of Child Labour (IPEC) also a by- programme of ILO held a Rapid Assessment Programme on CSEC.

Some observations on CSEC from recent IPEC Rapid Assessments

The Rapid Assessment survey, developed by IPEC and UNICEF, relies on interviews and other, mainly qualitative, techniques, to provide a picture of a specific activity in a limited geographic area. It is a highly useful tool for collecting information on the worst forms of child labour, like CSEC, that is difficult to capture with standard quantitative surveys

• In Sri Lanka, children often become the prey of sexual exploiters through friends and relatives. The prevalence of boys in prostitution here is stronglyrelated foreign tourism.

• An estimated 12,000 Nepalese children, mainlygirls, are trafficked for sexual commercial exploitation each year within Nepal or to brothels in India and other countries.

• Some 84 per cent of girls in prostitution interviewed in Tanzania reported having been battered, raped or tortured by police officers and local community guards. At least 60 per cent had no permanent place to live. Some ofthese girls started out as child domestic workers.

• In El Salvador, one-third of the sexually exploited children between 14 and 17 years of age are boys. The median age for entering into prostitution among allchildren interviewed was 13 years. They worked on average five days per week, although nearly 10 per cent reported that they worked seven days a week.

• In Viet Nam, family poverty, low family education and family dysfunction were found to be primary causes for Commercial Sexual Exploitation. Sixteen per cent of the children interviewed were illiterate, 38 per cent had only primary-level schooling. Sixty-six per cent said that tuition and school fees were beyond the means of their families.2

As is the case for other worst forms of child labour, severe poverty, relatively high earnings perceived, low esteem for education, family dysfunction, a cultural obligation to help support the family or the need to earn money to simply survive are all factors that make children vulnerable to Commercial Sexual Exploitation. There are other non-economic factors that also push children into commercial sexual exploitation. Children who are at greatest risk of becoming victims of CommercialSexualExploitationare those that have previously experienced physical or sexual abuse. Afamily environment of little protection, where one or both parents are absent or where there is a high level of violence or alcohol or drug consumption, induces boys and girls to run away from home, making them highly susceptible to abuse. Gender discrimination and low educational levels of the parents, mothers in particular, are also risk factors.

OUTLINES OF THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES BILL, 2011

To deal with child sexual abuse cases, the Government has brought in a special law, namely, the Protection of children from sexual offences (POCSO) Act, 2012. The act has come into force with effect from 14 November, 2012 along with the rules framed thereunder. This Act has been passed by the Lok Sabha on 22nd May, 2012. The Bill was earlier passed by the Rajya Sabha on 10th May, 2012. The Protection of Children from Sexual Offences Act, 2012 has been drafted to strengthen the legal provisions for the protection of children from sexual abuse and exploitation. For the first time, a special law has been passed to address the issue ofsexual offences against children. Sexual offences are currently covered under different sections of IPC. The IPC does not provide for all types of sexual offences against children and, more importantly, does not distinguish between adult and child victims.

The Protection of Children from Sexual Offences Act, 2012 defines a child as any person below the age of 18 years and provides protection to all children under the age of 18 years from the offences of sexual assault, sexual harassment and pornography. These offences have been clearlydefined for the first time in law. TheAct provides for stringent punishments, which have been graded as per the gravity of the offence. The punishments range from simple to rigorous imprisonment of varying periods. There is also provision for fine, which is to be decided by the Court.

An offence is treated as “aggravated” when committed by a person in a position of trust or authority of child such as a member of security forces, police officer, public servant, etc.

Punishments for Offences covered in the Act are:

• Penetrative SexualAssault (Section 3) – Not less than seven years which may extend to imprisonment for life, and fine (Section 4)

• Aggravated Penetrative SexualAssault (Section 5) – Not less than ten years which may extend to imprisonment for life, and fine (Section 6)

• SexualAssault (Section 7) – Not less than three years which may extend to five years, and fine (Section 8)

• Aggravated SexualAssault (Section 9) – Not less than five years which may extend to seven years, and fine (Section 10)

• Sexual Harassment of the Child (Section 11) – Three years and fine (Section 12)

• Use of Child for Pornographic Purposes (Section 13) – Five years and fine and in the event of subsequent conviction, seven years and fine (Section 14 (1))

The Act provides for the establishment of Special Courts for trial of offences under the Act, keeping the best interest of the child as of paramount importance at every stage of the judicial process. TheAct incorporates child friendly procedures for reporting, recording of evidence, investigation and trial of offences. These include:

• Recording the statement of the child at the residence of the child or at the place of his choice, preferably by a woman police officer not below the rank of sub-inspector

• No child to be detained in the police station in the night for any reason.

• Police officer to not be in uniform while recording the statement of the child

• The statement of the child to be recorded as spoken by the child

• Assistance of an interpreter or translator or an expert as per the need of the child

• Assistance ofspecial educator or anyperson familiar with the manner of communication of the child in case child is disabled

• Medical examination of the child to be conducted in the presence of the parent of the child or any other person in whom the child has trust or confidence.

• In case the victim is a girl child, the medicalexamination shall be conducted by a woman doctor.

• Frequent breaks for the child during trial.

• Child not to be called repeatedly to testify.

• No aggressive questioning or character assassination of the child.

• In-camera trial of cases.

TheAct recognizes that the intent to commit an offence, even when unsuccessful for whatever reason, needs to be penalized. The attempt to commit an offence under the Act has been made liable for punishment for up to half the punishment prescribed for the commission of the offence. The Act also provides for punishment for abetment of the offence, which is the same as for the commission of the offence. This would cover trafficking of children for sexual purposes.

For the more heinous offences of Penetrative SexualAssault, Aggravated Penetrative Sexual Assault, SexualAssault and Aggravated SexualAssault, the burden of proof is shifted on the accused. This provision has been made keeping in view the greater vulnerability and innocence of children. At the same time, to prevent misuse of the law, punishment has been provided for making false complaint or proving false information with malicious intent. Such punishment has been kept relatively light (six months) to encourage reporting. If false complaint is made against a child, punishment is higher (one year).

The media has been barred from disclosing the identity of the child without the permission of the Special Court. The punishment for breaching this provision by media may be from six months to one year. For speedy trial, the Act provides for the evidence of the child to be recorded within a period of 30 days. Also, the Special Court is to complete the trial within a period of one year, as far as possible.

To provide for relief and rehabilitation of the child, as soon as the complaint is made to the Special Juvenile Police Unit (SJPU) or local police, these will make immediate arrangements to give the child, care and protection such as admitting the child into shelter home or to the nearest hospital within twenty-four hours of the report. The SJPU or the local police are also required to report the matter to the Child Welfare Committee within 24 hours of recording the complaint, for long term rehabilitation of the child.

The Act casts a duty on the Central and State Governments to spread awareness through media including the television, radio and the print media at regular intervals to make the general public, children as well as their parents and guardians aware of the provisions of this Act. The National Commission for the Protection of Child Rights (NCPCR) and State Commissions for the Protection of Child Rights (SCPCRs) have been made the designated authority to monitor the implementation of the Act.

Object

A bill to protect children from offences of sexual assault, sexual harassment and pornography and provide for establishment of Special Courts for trial of such offences and for matter connected therewith or incidental thereto.

Whereas clause (3) of Article 15 of the constitution, inter alia, empowers the State to make special provisions of children;

And Whereas, the Government of India has acceded on the 11th December, 1992 to the Convention of the Rights of the Child, adopted by the GeneralAssembly of the United Nations, which has prescribed a set of standards to be followed by all State parties in securing the best interests of the child;

And Whereas it is necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected by every person by all means and through all stages of a judicial process involving the child;

And Whereas it is imperative that the law operates in a manner that the best interest and well being ofthe child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child;

And Whereas the State Parties to the Convention on the Rights of the Child are required to undertake all appropriate national, bilateral and multilateral measures to prevent-

(a) the inducement or coercion of a child to engage in any unlawful sexual activity;

(b) the exploitative use of children in prostitution or other unlawful sexual practices;

(c) the exploitative use of children in pornographic performances and materials;

And Whereas sexual exploitation and sexual abuse of children are heinous crimes and need to be effectively addressed.

CHILD LABOUR

Child labour is an issue, involving widespread international concern. It brings the entire humankind face to face with the consequences of a world in which the disparity between the rich and the poor is ever widening and economic liberalization is taking its toll on basic human values. Increasing globalization and the dependency of many developing countries on access to industrialized markets may link the vulnerabilityof an economy to child labour. Child Labour applies to the practice of employing young children in factories, now used to denote the employment of minors generally, especially in work that may interfere with their education or endanger their health. Throughout the ages and in all cultures children joined with their parents to work in the fields, in the marketplace, and around the home as soon as they were old enough to perform simple tasks. Child labour is not a recent phenomenon and that too not confined to any particular state. Does child work cause poverty or is it poverty that causes children to work? This has been the raging debate globally for more than ten years. Here I would like to make the submission that the full-time work of children is the cause of poverty. If poverty has to be eradicated, there has to be a frontal attack on the full-time work of children at the cost of education. The full-time work of children is the result of the exploitation of the weak and the vulnerable and it is always the poorest sections of society who are most vulnerable to this exploitation. When children start working at a young age they remain illiterate, unskilled and unable to demand their rights for equal wages and better conditions of work. Working long hours, they burn themselves out and their health is severely impaired. As adults, in situations like these, they are often heavily in debt. The circumstances of unemployment – if not unemployables themselves – combined with their inferior position in the hierarchies of caste and class, predispose them to putting their own children to work. And so the downward spiral of exploitation and poverty is perpetuated. Forced at an early age to accept poor working conditions, long hours of work and less than minimum wages, the poor children find themselves, not surprisingly, in a state of “false consciousness” believing that their exploiters are their benefactors. The full-time work of children therefore becomes acceptable even to those most affected by it.

So all-pervasive is the belief that without poverty eradication, children will have to work that we have taken this reasoning as irrefutable. The questions that are most often asked are: What will happen to the families if their children stop working? How will poor families survive

without the additional income of the children? It is seldom taken into account that children’s earnings are pathetically meager, and that it is precisely because of the vast numbers of children in the work-force in all sectors of the economy that adult wages are depressed. In most cases, the child is used by parents as an asset to mortgage, when all other assets disappear.

INTERNATIONAL SCENE

Since the early 21st century, child labour remains a serious problem in many parts of the world. Studies carried out in 1979, the International Year of the Child, show that more than 50 million children below the age of 15 were working in various jobs often under hazardous conditions. Many of these children live in underdeveloped countries their living conditions are miserable and their chances for education minimal. Frequently, these families lack the basic necessities of life like adequate food, clothing and shelter, and even water for bathing. In India, for example, some 20,000 children work 16-hour days in match factories. Child- labour problems are not, limited to developing nations. They occur wherever poverty exists in Europe and the United States the most important efforts to eliminate child-labour abuses throughout the world come from INTERNATIONAL LABOUR ORGANISATION (ILO), founded in 1919 and now a special agency of the United Nations. The organization has introduced several child-labor conventions among its members, including a minimum age of 16 years for admission to all work, a higher minimum age for specific types of employment, compulsory medical examinations, and regulation of night work. In the late 20th century the ILO added to this list the worst forms of child labor, including slavery, prostitution, debt bondage (the practice of requiring children to work off loans made to their parents), and forced military service. The ILO, however, does not have the power to enforce these conventions; it depends on voluntary compliance of member nations.

For example due to adverse publicity generated by a campaign ofAnti-Slavery International in 1993, the use of children in camel races was banned by the United Arab Emirates (UAE). Even children as young as 6 were smuggled in fromAsian and African countries and were exposed to death as camel riders to provide entertainment to the audience. The children are tied to the tails of the camels so that that the pain makes the camels run faster. Children often slip and get crushed under the hooves of the racing camels. As late as 1997, there was a report that a 10 year-old Bangladeshi boy died in a camel race in the UAE.3

Related International Instruments

Minimum Age Convention, 1973

This policy was adopted by International Labour Conference in 1973. The first principle of the Convention is that the minimum age should not be less than the age for completing compulsory schooling and in no event shall it be less than 15 years. For hazardous industries the age limit should be 18 years. This Convention also requires ratifying states to pursue a national policy designed to ensure the effective abolition of child labour and to progressively raise the minimum age for admission to employment or work. This convention is extremely general in nature and is to be applied in all sectors of activity, whether or not the child is employed for wages but Article 5 limits the application of the convention, the convention fails to include domestic services, where children are prone to physical, mental and psychological abuse.

Worst Forms of Child Labour Convention, 1993

This Convention concerning the prohibition and immediate action for the elimination of the worst forms of labour was an outcome of the general conference of the ILO which had been convened in Geneva in 1999. This Convention seeks to complement the Convention and Recommendations of 1973. The basic need for the unanimous adoption of such a convention was that, child labour remaining a concern for the international community, prohibition and elimination of the worst form of child labour was fast becoming the main priority for national and international action, considering the existence and the continuing increase in such forms of labour, thus paving the way for immediate and comprehensive action.

Conventions on the Rights of the Child, 1989

The Convention on the Rights ofthe Child is the first legally binding internationalinstrument to incorporate the full range of human rights-civil, cultural, economic, political and social rights. In 1989, world leaders decided that children needed a special convention just for them because people under 18 years old often need special care and protection that adults do not. The leaders also wanted to make sure that the world recognized that children have human rights too.

The Convention sets out these rights in 54 articles and two Optional Protocols. It spells out the basic human rights that children everywhere have: the right to survival; to develop to the fullest; to protection from harmful influences, abuse and exploitation; and to participate fully in family, cultural and sociallife. The four core principles of the Convention are non-discrimination; devotion to the best interests of the child; the right to life, survival and development; and respect for the views of the child. Every right spelled out in the Convention is inherent to the human dignityand harmonious development ofevery child. The Convention protects children’s rights by setting standards in health care; education; and legal, civil and social services.

World Declaration on the Survival, Protection and Development of Children, 1990 It made a promise to protect the child and to end child labour. This declaration articulates various goals which pertain directly on indirectly to the protection of child in armed conflict. It also aims towards the enhancement of the health and nutrition of the child. Further attention, care and support should be accorded to disabled children, as well as to other children in very difficult circumstances. Strengthening the role of women in general and ensuring their equal rights will be to the advantage of the world’s children. Girls must be given equal treatment and opportunities from the very beginning The declaration was followed by the adoption of a Plan ofAction for the proper implementation of measures envisaged in it.

NATIONAL PERSPECTIVE

The issue of child labour is hardly an issue in a country that houses the maximum number of child labourers in the world!! But it is less of a surprise when one learns that the official position of country has been insouciant, accepting it as a harsh reality, intrinsic to its status as a developing country. The practice of child labour is an ancient one in India and has always existed in one form or the other. Children are the most important assets of any country. The future of any nation is largely determined on how its children grow and develop. We shall first discuss the constitutional and legislative position in India in relation to children.

According to UNICEF, there are almost 100 million children in India in the age-range of 5-14 who are not in school and therefore to be considered as working children. Aquick glance at the industrial sector shows that children are employed in the slate pencil, diamond-cutting, gem polishing, cotton hosiery, carpet-weaving, lock-making, pottery, brass-ware and glass industries to name a few. There is virtually no sector of the Indian economy that is untouched by working children. In a number of industries children’s work is justified in the name of traditional occupations, the fact of the matter was that children of master craftsmen and the better-off artisans were going to school regularly and they spent a couple of hours a day learning skills from their fathers. It was the children of Scheduled Castes, Scheduled Tribes or the Muslim communities who provided the bulk of the child labour force. These groups represented a combination of economic and social disadvantages. When one looked at the lives ofthese children as they grew to adulthood, it was apparent that the absence of schooling closed the route to upward mobility and, once again, perpetuated the disadvantages in the next generation.

Constitutional Mandate

The framers of the Indian constitution were well aware ofthe problem of child labour so some Articles in Part III and IV of the Indian Constitution have several provisions to protect the welfare of the children and prohibit of child labour.

a) Article 15(3) enables the state to make special provisions for women and children. It does not require that absolutely identical treatment in similar matters be afforded to them but the policy at least should be of the maximum good of maximum number.

b) Article 21A provides a fundamental right of education to all children below the age of 14 years.

c) Article 23 of the constitution prohibits trafficking in human beings, begar and other forms of forced labour.

d) Article 24 prohibits employment of children below 14 years of age in factories and hazardous employment.

e) Article 39(e) imposes upon the state an obligation to ensure that the health and strength of workers, men and women and the tender age of the children.

Legislative History

The problem of child labour continues to pose a challenge before the nation. Government has been taking various pro-active measures to tackle this problem. However, considering the magnitude and extent of the problem and that it is essentially a socio-economic problem inextricably linked to poverty and illiteracy, it requires concerted efforts from all sections of the society to make a dent in the problem.

In India legislature has traversed a long path since 1881 progressivelyextending the protection of the law to working children over this period the statutory provisions have mainly concentrated on aspects like reducing the work hours, raising the minimum working age for various activities defined differently.

The first comprehensive Act in this respect was the Employment of Children Act, 1938. It banned the employment of children under the age of 13 years of age. It was repealed by the Child Labour (Prohibition & Regulation) Act, 1986.

Way back in 1979, Government formed the first committee called Gurupadswamy Committee to studythe issue of child labour and to suggest measures to tackle it. The Committee examined the problem in detail and made some far-reaching recommendations. It observed that as long as poverty continued, it would be difficult to totally eliminate child labour and hence, any attempt to abolishit through legalrecourse would not be a practicalproposition. The Committee felt that in the circumstances, the only alternative left was to ban child labour in hazardous areas and to regulate and ameliorate the conditions of work in other areas. It recommended that a multiple policy approach was required in dealing with the problems of working children.

The various legislations dealing with this aspect are:

1. The Children (Pledging of Labour) Act, 1933.

2. The Factories Act, 1948.

3. The Mines Act, 1952.

4. The Motor Transport Workers Act, 1961

5. The Beedi and Cigar Workers (Condition of Employment) Act, 1966

Section 23 of the Factories Act 1948 says that no young person shall be required or allowed to work at any machine to which this section applies unless he has been fully instructed as to the dangers arising in connection with the machine and the precautions to be observed etc. Clause (d) of section 2 defines a young person as one who is either a child or an adolescent. Child is defined under clause (c) of the same section as a person who has not completed his fifteenth year of age. However, under section 23 of the Indian Contract Act, such child lacks the capacity to contract -presumption being that children lack capacity to form proper judgment. One fails, then, to understand how instructions about the dangers of use of machine could be properly appreciated by the child to undertake the activity. Apprentices Act, 1961 states in section 3 that a person who is less than fourteen years of age is not qualified to undergo the apprenticeship training. Anyone engaging a person in breach of this section is liable for punishment under section 30. Section 109 of the Merchant ShippingAct, 1958 states that no person under the age of fourteen years of age shall be engaged or carried to sea to work in any capacity in any ship except under conditions stated in the section are fulfilled. However, the penalty for breach of the statutorymandate is a paltry fine of Rs.50/ only. Section 21 of the Motor Transport Workers Act 1961 states that no child shall be required or allowed to work in any capacity in any motor transport undertaking. Contravention of this provision entails a maximum sentence of three months and or a maximum fine of Rs.500/-. Then section 40 and 45 of the MinesAct, 1952 also contain prohibitory provisions as far as the engagement of children is concerned. Whereas section 40 stipulates that no person under the age of 18 years shall be allowed to work in any mine or part thereof, section 45 says that such persons shall not be allowed to be present in any part of the mine above ground where any operation connected with or incidental to any mining operation is being carried on. Exception is created only for apprentices not below the age of sixteen years subject to certain conditions. However, it is rather surprising that the penalty provided for breach of these statutory provisions in the Mines Act, is a fine up to Rs.500 under section 68. Section 24 of the Beedi & Cigar Workers (Conditions of Employment) Act 1966 prohibits anyone from engaging a child under the age of fourteen years in any industrial premises connected with the Act…

Child Labour (Prohibition & Regulation) Act, 1986

It does not completely ban child labour, but only seeks to ‘protect’ working children. It specifically prohibits the employment of children in certain industries and leaves the scope for such prohibition in others. It also regulates the conditions of work where there is no such prohibition, and lays down enhanced penalties for contraventions. Under theAct any member of the public may also make a complaint to a Court of Competent Jurisdiction that children are being employed in contravention of the Act. The Act has been criticized for several reasons – that no minimum age is stated for occupations permitted to children, no provision exists for the education of working children, children working for families are outside the scope of legislation and the penal provisions are too dilute to work as deterrent.

Judicial Trend

On 10th December 1996 in the case of M.C. Mehta vs. State of Tamil Nadu and others4 the Supreme Court of India, gave certain directions on the issue of elimination of child labour. The main features of judgment are as under:

• Survey for identification of working children;

• Withdrawal of children working in hazardous industry and ensuring their education in appropriate institutions;

• Contribution at Rs.20,000/- per child to be paid by the offending employers of children to a welfare fund to be established for this purpose;

• Employment to one adult member of the family of the child so withdrawn from work and it that is not possible a contribution of Rs.5,000/- to the welfare fund to be made by the State Government;

• Financial assistance to the families of the children so withdrawn to be paid -out of the interest earnings on the corpus of Rs.20,000/25,000 deposited in the welfare fund as long as the child is actually sent to the schools;

• Regulating hours of work for children working in non-hazardous occupations so that their working hours do not exceed six hours per day and education for at least two hours is ensured. The entire expenditure on education is to be borne by the concerned employer.

• The implementation of the direction of the Supreme Court is being monitored by the Ministry of Labour and compliance of the directions have been reported to the state and union governments.

In a related judgment on 7th May, 1997, the Supreme Court in Writ Petition of Bandhua Mukti Morcha, etc. vs. Union of India & Others5 has also given a number of directions on the identification, release and rehabilitation of child labour. The Court, inter alia, directed Government of India to convene a meeting with the State Governments to evolve principles/ policies for progressive elimination of employment of children below 14 years. These directions were given by the Court in the context of employment of children in the carpet industries in the State of U.P. In this case, the Court issued the following directions to the Government of Uttar Pradesh to

– Investigate into the conditions of employment of children.

– issue such welfare directions as are appropriate for total prohibition of employment below 14 years of age.

– Provide facilities like education, health, sanitation, nutritious food,

In another case People’s Union for Democratic Rights vs. Union of India6 the Supreme Court considered the employment of children in construction work. It was brought to the notice of the court that construction was not a process specified in the Schedule to the Employment of ChildrenAct, 1938 and this provision was being misused by the contractors. The Supreme Court asked the state and the union governments to immediately set this glaring omission right.

NEW DEVELOPMENTS

For many years now, we have talked about a day that would dawn when children in India would be protected by law against all kinds of abuse inflicted upon them. They aren’t as yet, because existing laws in our countrystilldon’t encompass the entire gamut ofoffences committed against children each day. Incidentally, it has been almost 15 years since India ratified the UN Convention on the Rights of the Child, but little has been done to ensure that the mark set by the convention was met. However, it seems that a change is finally on the cards. Adraft Bill of the new Offences against Children Act, 2006 has been drawn up by the Women and Child Development Department, under the Centre’s ministry of human resource development. Touted as the legislation that could effectively put an end to all kinds of child abuse, it has sparked off a legal debate across the country. To begin with, the draft Bill seeks to plug the loopholes in such existing laws as the Juvenile Justice Act. Most offences covered by it have been made non-bailable. These include sexual offence, physical abuse, trafficking, sale and transfer and economic exploitation of children. Only corporalpunishment and bullying, defined as an attempt to “deliberately and persistently intimidate, overbear, persecute, humiliate or demean a child through menacing words or gestures” have been listed as bailable offences. The draft Bill still has a long way to go before it can finally become a law. But considering the storm it has already kicked up, it won’t perhaps be wrong to assume that there will be several rounds of talks over its content before it finally gets the stamp of approval.7

RECOMMENDATIONS

• Design and implement a multi-pronged effort to end child labor, composed of both persuasive and mandatory means. At a minimum, this effort should include stepped-up enforcement efforts, free, compulsory, and quality public education, and financial support for children to go to school.

• Implement measures designed to bring current practice into compliance withArticle 45 of the constitution which mandates free and compulsory education for all children up to fourteen years of age.

• Establish an independent monitoring agency to oversee the enforcement of the Child Labour (Prohibition and Regulation) Act, 1986.

• Ensure the active involvement of the Scheduled Castes and Scheduled Tribes Commission in the process of identifying, releasing, and rehabilitating bonded child laborers.

• Establish and make public a master list or national register of people prosecuted under the Bonded Labour (SystemAbolition) Act, 1976 and the Child Labour (Prohibition and Regulation) Act, 1986 and include information on the nature of sentences given to guilty parties.

• Investigate the abuse and exploitation ofchildren by agents and employers, and prosecute such agents and employers under the relevant domestic law such as Chapter VI of the Juvenile Justice Act, or Chapter XVI of the Indian Penal Code.

7 The Telegraph (April 26 2006)

• Condition all entitlements, subsidies, special tax allowances, and other concessions currently extended to industries that employ bonded child labor on compliance with the Bonded Labour System (Abolition) Act, 1976 and other relevant laws.

• Condition all new subsidies and incentives on industry compliance with applicable domestic laws banning bonded labor.

• Amend relevant legislation, including the Child Labour (Prohibition and Regulation) Act, to bring it into compliance with the requirements of the Indian Constitution.

• Add to the Bonded Labour System (Abolition) Act and the Child Labour (Prohibition and Regulation) Act additional punishments for violators, including forfeiture ofoperating licenses, seizure of manufacturing equipment, and short and long-term closure of plants.

• Amend the Child Labour (Prohibition and Regulation) Act, 1986 so that household enterprises and government schools and training centers are no longer exempted for prohibitions on employing children; rules formulated by the central government will apply until replaced by rules formulated by the states themselves; and coverage under the act should be expanded to include agriculture and informal sectors.

• Amend the Beedi and Cigar Workers Act so that exemptions for household-based production are eliminated.

• Amend the Children (Pledging of Labour) Act so that fines to employers, agents, and creditors are increased, the funds collected are contributed to the compensation and rehabilitation ofthe children exploited; imprisonment as a sentencing alternative is added; and specify which governmental department is responsible for enforcement of this act.

• Amend the FactoriesAct to cover all factories or workshops employing child labor, not just those with twenty or more workers, or ten or more workers where power is used.

• Meet International Labour Organisation norms of one Ministry of Labour inspector for every 150 factories and establishments.

• Amend the Trade UnionAct to allow children to form and participate in trade unions as an interim measure pending the elimination ofchild labor. The Convention on the Rights of the Child, which India has ratified, guarantees the children the right of freedom of association.

• Promptly submit the Indian government’s report on compliance with the Convention on the Rights of the Child to the United Nations Committee on the Rights of the Child, as this has been overdue for more than one year.

• Continue cooperation with international organizations working to abolish bonded child labor, in particular the International Labour Organisation’s International Programme to Eliminate Child Labour.

CONCLUSION

Child labour and sexual exploitation cannot be abolished by a magic wand overnight, it has to pass through a long way and during this transition period certain regulatory measures have to be taken such as amendment of relevant legislations and ensuring minimum wages etc. In addition to genuine government action, it is essential that nongovernmental organizations be encouraged by the government to collaborate in this effort. The government has the resources and authority to implement the law, while community-based organizations have the grass- roots contacts and trust necessary to facilitate this implementation. Furthermore, nongovernmental groups can act as a watchdog on government programs, keeping vigil for corruption, waste, and apathy. In addition to this basically the issue of child labour has to be addressed in a larger framework of national legislation and international co-operation also. This is a major issue raging in discussions all over the world and it has to be taken seriously so that such an evil can be routed from its very roots and for this all local, national and international agencies will have to come together to make a genuine difference in the society we are living.

REFERENCES

A. BOOKS

i) Gustavasson and Segal; Critical Issues on Child Welfare; Sage Publications, (1994)

ii) Paton, Thorpe and Wattang; Child Protection: Risk and Moral Order; Mc Millan Press, (1997)

iii) Perrin and Perrin; Child Maltreatment: An Introduction; Sage Publications, (1962) iv) Judith Ennew; The Sexual Exploitation of Children; Polity Press (1986)

v) ) Jean Renovoize; Innocence Destroyed: Study of Child Sexual Abuse; Routeledge Publications, (1995), Second Edition

vi) Women and Children: Dr. S.C.Tripathi & Vibha Arora

B. ARTICLES

i) Geeta Shrivastava; Child Labour; Central India Quarterly, 2000, (Jan- Mar), Vol. 13, Issue 1

ii) Pradeep Mehta; Child Labour: A Different Perspective; Development, 2000 June, Vol. 43, Issue 2

iii) Sanjay Prasad; Prospects and Policies for the Elimination of Child Labour in India; Labour and Development, (Jan-Dec), Vol. 05, Issue 1

iv) Child Labour in India: Disentangling essence and Solution; Economic and Political Weekly, 2002, Vol.37, Issue 52 v ) R. Barri Flowers; The Sex Trade Industry’s Worldwide Exploitation of Children, Jstor Archives, May, 2001

vi) Protecting Children from Sexual Exploitation and Sexual Violence in Disaster and Emergency Situations; Jstor Archives

vii) POCSO Model Guidelines: Ministry of Women & Child Development, September 2013.

C. WEBSITES

i) http//:www.ipec.com

ii) http//: www.thetelegraph.com

iii) http//: www.unicef.org iv) http//: www. hrw.org

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