Both houses of the Indian parliament have now approved the text of the bill to amend the Child Labour (Prohibition and Regulation) Act, 1986. This has attracted a lot of attention and controversy. In this long read, ETI trainer and India expert Stirling Smith puts the new law under the microscope while tracing the history of Indian labour law.
ETI's new Base Code Guidance: Child labour - practical guidance for brands and retailers.
In my last blog, I promised – or threatened, depending on your point of view – to write about the amendments to the Indian law on child labour. There have been a lot of negative comments, for example here from UNICEF.
To get a real understanding, we need to take an historical view of the development of child labour law in India, which is quite fascinating.
No wonder my wife says I need to find a new hobby.
Taking an historical view
The 1948 Factories Act
Let’s kick off with the 1948 Factories Act, which is pretty much a word for word copy of the British Factories Act 1937.
Section 67 of the act prohibits a child who has “not completed his 14th year” from working in a factory. By the way, a factory is defined as premises where 10 or more workers are working and uses power, or there are 20 or more workers and there is no power.
But, two thirds of factories in India don’t bother to register, as they are required to do under section 7 of the Act. So it is quite hard to track whether or not children are employed in those factories.
Curiously, section 71 of the act says that “no child shall be employed or permitted to work, in any factory - (a) for more than 4 ½ hours in any day; or (b) during the night”.
Hang on a minute. Section 67 said that no child shall be required or allowed to work in any factory.
Confusing, eh? Cue my favourite line from Shakespeare: “let’s kill all the lawyers” (Henry VI, part 2).
The Mines Act 1953
Then there is the Mines Act, 1952 which is again a copy of the earlier British Mines and Quarries Act.
Section 40 prohibits the employment of any individual below the age of 18, in “any mine or part thereof”, which would include above or below ground, so includes the stone quarries in Rajasthan where a number of ETI members source material. Or the mica mines in eastern India, which we will come back to later.
Section 45 prohibits the presence of persons below 18 years of age in the vicinity of a mine. This is quite smart.
Sometimes young people are found near a quarry and concerns are raised about child labour; and the answer is given “but they are not working, they have just come after school”.
Section 45 of the Mines Act would seem to rule out this response completely.
None of the provisions of the Factories Act or Mines Act have been repealed by the specific law on child labour.
In fact, the 1986 Act states (Section 20 if you find this kind of thing interesting, as I do) that its provisions are in addition to those in the older laws.
Welcome to my world of Indian labour law. Looks like my wife is right. I need a new hobby. Indian labour law is going to drive me mad.
There was a 1938 Employment of Children Act, now repealed, which prohibited the employment of children under 16 in ports and railways.
The Child Labour (Prohibition and Regulation) Act, 1986
And so to the 1986 Act, a response to the big international outcry about child labour in India.
The Act defined a child as any person who has not completed his 14th year of age. It also prohibited the engagement of children in 57 occupations and sectors – listed in a schedule.
But if you had not reached your 15th birthday, and you were not working in one of those prohibited occupations, it was perfectly legal to work.
Let me be clear: the 1986 Act legalised child labour in all cases except those listed in the schedule.
Children above 14 had no specific protection at all – if you read my last blog carefully, you know the international definition of a child is somebody under 18 years old.
The Child Labour (Prohibition and Regulation) Act, 1986 should really have been called the Child Labour Promotion Act.
Amendments to the Child Labour (Prohibition and Regulation) Act, 1986
So now we come to the main feature, the bit you really been waiting for: the amendments to the 1986 Act which will no doubt be signed off by the President of India soon and become law.
Child labour for the under 14-year-olds is now prohibited except in the case of family enterprises - we will come to this bit in a minute.
What about those above 14 years of age?
Well, the amendment introduces a new category of “adolescents” for those between 14 and 18, and there is now a new list of “industries involving hazardous processes” where they’re not supposed to work, and this is taken from the Factories Act (First Schedule).
But this is less than half the length of the list under the 1986 Act.
The Ministry of Labour claims that it is using the list from the Factories Act to harmonise the two pieces of legislation.
But, there is no other provision for regulating the work of this group, although the Factories Act does make several provisions for protecting adolescents.
The Ministry of Labour say that the amendments will allow India to ratify the two ILO conventions on child labour (look at my last blog to remind yourself).
This says the country needs to have a minimum age of entry into employment, which should coincide with the school leaving age.
This does make sense. There is a classic 1991 book, The Child and the State in India: Child Labour and Education Policy in Comparative Perspective, by the American academic Myron Weiner.
Myron Weiner used global evidence to show that the way to end child labour was to have effective education up to a fixed age. Unlike many academic books, it’s a fairly straightforward read.
The Right to Education Act in India does indeed provide a de facto school leaving age of 14.
This asks governments to protect child workers between school leaving age and 18 years.
The introduction of the new category of adolescents, and the short list of prohibited employment for them, might look like it conforms to the convention. So long as you don’t actually read the convention.
This is a regular tease by the government of India. Every few years it says it is carefully considering ratifying the ILO conventions on child labour. And then doesn’t.
By the way, estimating the number of children who are not in school should be a proxy for estimating the number of children in work.
The ILO reckons that approximately 5.7 million Indian children aged 5 to 17 years are involved in child labour - data obtained from using national household surveys.
That figure seems improbably low to me.
Finally, let’s look at that part of the amendment which has attracted most attention.
A child can perform work that “helps his family or family enterprise, which is other than any hazardous occupations or processes set forth in the Schedule, after his school hours or during vacations.”
Don’t forget, this is no change from the 1986 law. But the problem is how can the government make sure this provision is not abused?
I really can’t do better than quote from the joint committee of the two houses of the Indian parliament which went through the bill line by line. It said:
"The Committee are not able to understand as to how the Ministry proposes to keep a check on children working in their homes. The Ministry is itself providing loopholes by inserting this proviso since it would be very difficult to make out whether children are merely helping their parents or are working to supplement the family income."
The joint committee report is scathing about the Ministry of Labour arguments in favour of several other amendments in bill.
It is littered with phrases like “The Committee feel that the Ministry have not made any efforts to...” or “the Ministry has altogether ignored the provision of the ILO Convention 138...”
You can find the committee report, and the full text of the legislation here.
Let’s take one small sector where we all are using products from India, mica. It is ubiquitous - in cosmetics and paint for example. Mica mines are mainly found in the states of Bihar and Jharkhand, and are often family businesses.
You can just see the mica miners using the new legislation as a get out clause. “It’s a family business, that just helping for a few hours after school.” Although, as I’ve shown, the Mines Act would say there should be no children anywhere near the mines.
What should companies do?
In one sense, none of this matters. ETI members (and other companies) sourcing from India should just stick to the Base Code requirements.
It is helpful when national law is in line with the code, but not essential.
But companies need to ramp up their due diligence and look beyond the first tier of the supply chain. Do not get tangled up in discussions about the new law. It’s a dog’s breakfast.
Though after reading this, you might say that’s a bit harsh on canine prima colazione, as the Italians would call it.
Meanwhile, if anybody has any suggestions for a new hobby, please send them in.