Child Labour and Employment of Children in Family Enterprises.

Introduction

As per ILO Child Labour is the employment of children below the age of 18 which interferes with their mental and physical development and deprives them of their childhood. India has also enacted the Child Labour (Prohibition & Regulation) Amendment Act, 2016 which prohibits employment of children who have not attained the age of 14.

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India has been proactive when it comes to legislations on child rights, we have already ratified United Nations Convention on the Rights of the Child (UNCRC) in 1992. But a mere provision of protection against child labour is not enough, our laws should consider the societal conditions. India is a developing country with family businesses, these businesses thrive on collective efforts of a family and are helped by the children as well. Poor families who cannot afford education also take help of their children to add to their income.

Does Helping Family Business Fall Under The Ambit Of Child Labour?

One such case was discussed recently in Kerala HC. In this case the children belonged to a family which has recently migrated to Kerala to earn by selling pens, bangles, etc on the streets. These children helped their family by accompanying them on the street. These children were taken before the Child Welfare Committee, and it was decided that they would be sent to Government Homes. Kerala HC noted the financial conditions of parents and how they could not afford to send those children to a school. Decisions regarding the welfare of children should be taken to ensure that the interests of child are protected. Separating children from their families is not a positive step towards their holistic development. Thus, in this case, children helping their families at work was not considered to be child labour.

As per ILO, a child’s employment comes under the scope of ‘child labour’ when:

1. It is harming children mentally, physically, or is morally dangerous; and/or
2. Children are deprived of from attending school or have to leave prematurely thus the work interferes with their school life.

However, ILO under their International Program on Elimination of Child Labour (IPEC) mentions that whether a type of work is child labour or not should be decided on the basis of conditions of work, the practices in different sectors in a country, etc. Thus, ILO gives scope for exceptions to exist on the basis of community practices.

In India, these exceptions have been discussed in The Child Labour (Prohibition and Regulation) Amendment Act, 2016 which substituted section 3 to include a provision which allows children to work for family enterprises. This work shall be after school hours or during vacations. The work under family enterprises shall not include:

• Hazardous process as per the First Schedule of the Factories Act, 1948.
• Hazardous occupation
• Mines
• explosives
• Inflammable substances

Drawbacks of such exclusions under the 2016 Amendment Act

• The term “family” has a wide ambit since it includes members other than parents. Thus, there is a scope of solicitation of children for work by other family members.
• The amendment reduces the number of occupations considered hazardous. Activities such as gem cutting, slaughterhouse work, carpet weaving, stone breaking, brick work, work at kilns, domestic labour etc. are not considered hazardous anymore.
• Carpet weaving industry is infamous for exploiting children because they are preferred for detailed work which is easier for their small hands. As per the 2016 amendment carpet weaving is non-hazardous but the nature of the work is physically and mentally taxing.

Some of these issues were addressed in the Child Labour (Prohibition and Regulation) Amendment Rules, 2017. Under Rule 4 (2B), children are allowed to work for family enterprises if it does not interfere with their education. Following factors are to be considered to ensure that such work is harmless:

• Child is not involved in hazardous occupation or a process mentioned in Schedule of the Child Labour (Prohibition and Regulation) Act, 1986.
• Child is not involved in any stage of production, manufacturing, or supply that generates remuneration for the family, child or family enterprise.
• Child should be helping an enterprise where his family is the occupier.
• Child should not be required to work at school hours and between 7PM-8AM.
• The work should not interfere with the child’s school attendance, homework and extra-curricular activities.
• Child should not work as a substitute for an adult or adolescent.
• Child should not work continuously without break and the period of work should be less than 3 hours, excluding the period of rest in a day.

Thus, the existing provisions are aiming to balance the rights of a child along with giving them freedom to engage in family business and guidelines regarding work hours and conditions have been given to ensure that there is no exploitation by family members as well.

Another issue to be addressed here is how to balance the rights of children who are working to alleviate the financial problems of their family. In the case of M.C. Mehta v. State of Tamil Nadu (1996), Supreme Court advised that in such cases an adult unemployed member of the family should replace the child, in this way the source of income is not lost and the child is rescued. In the case of Court on its own Motion v. Governor of N.C.T Delhi (2009), it was held that if the child has taken up employment due to financial condition of the family, then benefits and assistance should be given to family members under state schemes.

Conclusion:

It has been widely argued that not every child working at an enterprise is being forced to do so. Sometimes parents ask their children to assist in order to acquaint them with family business so they can handle the business reins in future. Sometimes kids help by themselves to add to family’s income. The precedents mentioned above and the 2017 rules strikes a balance in what type of labour hinders the development of a child and what type of labour is mere help by child’s own will.

Author: Mallika Tewari, 4^th year BBA-LL.B. Student at Symbiosis Law School, Pune, in case of any queries please contact/write back to us at support@ipandlegalfilings.com or   IP & Legal Filing.

References:

• Pappu Bawariya and Anr. v. District Collector Civil Station and Ors. (2023).
• ILO, International Program on Elimination of Child Labour, https://www.ilo.org/ipec/facts/lang–en/index.htm
• Court on its own Motion v. Governor of N.C.T Delhi (2009)
• C. Mehta v. State of Tamil Nadu (1996)
• Child Labour (Prohibition and Regulation) Amendment Rules 2017.
• Bachpan Bacaho Aandolan, Employment of Children in Hazardous and Family Run Businesses https://bba.org.in/wp-content/uploads/2020/01/employment-of-children-in-hazardous-and-family-run-business.pdf
• Child Labour (Prohibition and Regulation) Amendment Act, 2016: Key Concerns and Issues (2016) SCC OnLine Blog OpEd 17.