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Ilo Notes Unit 4
Ilo Notes Unit 4
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Article 1
1. Each Member of the International Labour Organization which ratifies this
Convention undertakes to suppress the use of forced or compulsory labour in all
its forms within the shortest possible period.
2. With a view to this complete suppression, recourse to force or compulsory
labour may be had, during the transitional period, for public purposes only and as
an exceptional measure, subject to the conditions and guarantees hereinafter
provided.
3. At the expiration of a period of five years after the coming into force of this
Convention, and when the Governing Body of the International Labour Office
prepares the report provided for in Article 31 below, the said Governing Body
shall consider the possibility of the suppression of forced or compulsory labour in
all its forms without a further transitional period and the desirability of placing
this question on the agenda of the Conference.
Article 2
1. For the purposes of this Convention the term “forced or compulsory labour”
shall mean all work or service which is exacted from any person under the
menace of any penalty and for which the said person has not offered himself
voluntarily.
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Article 4
1. The competent authority shall not impose or permit the imposition of forced or
compulsory labour for the benefit of private individuals, companies or
associations.
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2. Where such forced or compulsory labour for the benefit of private individuals,
companies or associations exists at the date on which a Member’s ratification of
this Convention is registered by the Director-General of the International Labour
Office, the Member shall completely suppress such forced or compulsory labour
from the date on which this Convention comes into force for that Member.
Article 5
1. No concession granted to private individuals, companies or associations shall
involve any form of forced or compulsory labour for the production or the
collection of products which such private individuals, companies or associations
utilize or in which they trade.
2. Where concessions exist containing provisions involving such forced or
compulsory labour, such provisions shall be rescinded as soon as possible, in
order to comply with Article 1 of this Convention.
Article 6
Officials of the administration, even when they have the duty of encouraging the
populations under their charge to engage in some form of labour, shall not put
constraint upon the said populations or upon any individual members thereof to
work for private individuals, companies or associations.
Article 7
1. Chiefs who do not exercise administrative functions shall not have recourse to
forced or compulsory labour.
2. Chiefs who exercise administrative functions may, with the express permission
of the competent authority, have recourse to forced or compulsory labour, subject
to the provisions of Article 10 of this Convention.
3. Chiefs who are duly recognized and who do not receive adequate remuneration
in other forms may have the enjoyment of personal services, subject to due
regulation and provided that all necessary measures are taken to prevent abuses.
Article 8
1. The responsibility for every decision to have recourse to forced or compulsory
labour shall rest with the highest civil authority in the territory concerned.
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Article 9
Except as otherwise provided for in Article 10 of this Convention, any authority
competent to exact forced or compulsory labour shall, before deciding to have
recourse to such labour, satisfy itself:
(a) That the work to be done or the service to be rendered is of important direct
interest for the community called upon to do the work or render the service;
(b) That the work or service is of present or imminent necessity;
(c) that it has been impossible to obtain voluntary labour for carrying out the work
or rendering the service by the offer of rates of wages and conditions of labour not
less favorable than those prevailing in the area concerned for similar work or
service; and
(d) That the work or service will not lay too heavy a burden upon the present
population, having regard to the labour available and its capacity to undertake the
work.
Article 10
1. Forced or compulsory labour exacted as a tax and forced or compulsory labour
to which recourse is hard for the execution of public works by chiefs who exercise
administrative functions shall be progressively abolished.
2. Meanwhile, where forced or compulsory labour is exacted as a tax, and where
recourse is had to forced or compulsory labour for the execution of public works
by chiefs who exercise administrative functions, the authority concerned shall
first satisfy itself:
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(a) That the work to be done or the service to be rendered is of important direct
interest for the community called upon to do the work or render the service;
(b) That the work or the service is of present or imminent necessity;
(c) that the work or service will not lay too heavy a burden upon the present
population, having regard to the labour available and its capacity to undertake the
work;
(d) That the work or service will not entail the removal of the workers from their
place of habitual residence;
(e) That the execution of the work or the rendering of the service will be directed
in accordance with the exigencies of religion, social life and agriculture.
Article 11
1. Only adult able-bodied males who are of an apparent age of not less than 18
and not more than 45 years may be called upon for forced or compulsory labour.
Except in respect of the kinds of labour provided for in Article 10 of this
Convention, the following limitations and conditions shall apply:
(a) whenever possible prior determination by a medical officer appointed by the
administration that the persons concerned are not suffering from any infectious or
contagious disease and that they are physically fit for the work required and for
the conditions under which it is to be carried out;
(b) Exemption of school teachers and pupils and of officials of the administration
in general;
(c) The maintenance in each community of the number of adult able-bodied men
indispensable for family and social life;
(d) Respect for conjugal and family ties.
2. For the purposes of subparagraph (c) of the preceding paragraph, the
regulations provided for in Article 23 of this Convention shall fix the proportion
of the resident adult able-bodied males who may be taken at any one time for
forced or compulsory labour, provided always that this proportion shall in no case
exceed 25 per cent. In fixing this proportion the competent authority shall take
account of the density of the population, of its social and physical development,
of the seasons, and of the work which must be done by the persons concerned on
their own behalf in their locality, and, generally, shall have regard to the
economic and social necessities of the normal life of the community concerned.
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Article 12
1. The maximum period for which any person may be taken for forced or
compulsory labour of all kinds in any one period of twelve months shall not
exceed sixty days, including the time spent in going to and from the place of
work.
2. Every person from whom forced or compulsory labour is exacted shall be
furnished with a certificate indicating the periods of such labour which he has
completed.
Article 13
1. The normal working hours of any person from whom forced or compulsory
labour is exacted shall be the same as those prevailing in the case of voluntary
labour, and the hours worked in excess of the normal working hours shall be
remunerated at the rates prevailing in the case of overtime for voluntary labour.
2. A weekly day of rest shall be granted to all persons from whom forced or
compulsory labour of any kind is exacted and this day shall coincide as far as
possible with the day fixed by tradition or custom in the territories or regions
concerned.
Article 14
1. With the exception of the forced or compulsory labour provided for in Article
10 of this Convention, forced or compulsory labour of all kinds shall be
remunerated in cash at rates not less than those prevailing for similar kinds of
work either in the district in which the labour is employed or in the district from
which the labour is recruited, whichever may be the higher.
2. In the case of labour to which recourse is had by chiefs in the exercise of their
administrative functions, payment of wages in accordance with the provisions of
the preceding paragraph shall be introduced as soon as possible.
3. The wages shall be paid to each worker individually and not to his tribal chief
or to any other authority.
4. For the purpose of payment of wages the days spent in travelling to and from
the place of work shall be counted as working days.
5. Nothing in this Article shall prevent ordinary rations being given as a part of
wages, such rations to be at least equivalent in value to the money payment they
are taken to represent, but deductions from wages shall not be made either for the
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(b) that the workers so employed shall be medically certified to be physically fit,
where medical examination is possible, and that where such medical examination
is not practicable the person employing such workers shall be held responsible for
ensuring that they are physically fit and not suffering from any infectious or
contagious disease,
(c) The maximum load which these workers may carry,
(d) The maximum distance from their homes to which they may be taken,
(e) the maximum number of days per month or other period for which they may
be taken, including the days spent in returning to their homes, and
(f) The persons entitled to demand this form of forced or compulsory labour and
the extent to which they are entitled to demand it.
2. In fixing the maxima referred to under (c), (d) and (e) in the foregoing
paragraph, the competent authority shall have regard to all relevant factors,
including the physical development of the population from which the workers are
recruited, the nature of the country through which they must travel and the
climatic conditions.
3. The competent authority shall further provide that the normal daily journey of
such workers shall not exceed a distance corresponding to an average working
day of eight hours, it being understood that account shall be taken not only of the
weight to be carried and the distance to be covered, but also of the nature of the
road, the season and all other relevant factors, and that, where hours of journey in
excess of the normal daily journey are exacted, they shall be remunerated at rates
higher than the normal rates.
Article 19
1. The competent authority shall only authorize recourse to compulsory
cultivation as a method of precaution against famine or a deficiency of food
supplies and always under the condition that the food or produce shall remain the
property of the individuals or the community producing it. 2. Nothing in this
Article shall be construed as abrogating the obligation on members of a
community, where production is organised on a communal basis by virtue of law
or custom and where the produce or any profit accruing from the sale thereof
remain the property of the community, to perform the work demanded by the
community by virtue of law or custom.
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Article 20
Collective punishment laws under which a community may be punished for
crimes committed by any of its members shall not contain provisions for forced or
compulsory labour by the community as one of the methods of punishment.
Article 21
Forced or compulsory labour shall not be used for work underground in mines.
Article 22
The annual reports that Members which ratify this Convention agree to make to
the International Labour Office, pursuant to the provisions of Article 22 of the
Constitution of the International Labour Organization, on the measures they have
taken to give effect to the provisions of this Convention,shall contain as full
information as possible, in respect of each territory concerned, regarding the
extent to which recourse has been had to forced or compulsory labour in that
territory, the purposes for which it has been employed, the sickness and death
rates, hours of work, methods of payment of wages and rates of wages, and any
other relevant information.
Article 23
1. To give effect to the provisions of this Convention the competent authority
shall issue complete and precise regulations governing the use of forced or
compulsory labour.
2. These regulations shall contain, inter alia, rules permitting any person from
who forced or compulsory labour is exacted to forward all complaints relative to
the conditions of labour to the authorities and ensuring that such complaints will
be examined and taken into consideration.
Article 24
Adequate measures shall in all cases be taken to ensure that the regulations
governing the employment of forced or compulsory labour are strictly applied,
either by extending the duties of any existing labour inspectorate which has been
established for the inspection of voluntary labour to cover the inspection of forced
or compulsory labour or in some other appropriate manner. Measures shall also be
taken to ensure that the regulations are brought to the knowledge of persons from
whom such labour is exacted.
Article 25
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Article 28
1. This Convention shall be binding only upon those Members whose ratifications
have been registered with the International Labour Office.
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2. It shall come into force twelve months after the date on which the ratifications
of two Members of the International Labour Organization have been registered
with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which the ratification has been registered.
Article 29
As soon as the ratifications of two Members of the International Labour
Organization have been registered with the International Labour Office, the
Director-General of the International Labour Office shall so notify all the
Members of the International Labour Organization. He shall likewise notify them
of the registration of ratifications which may be communicated subsequently by
other Members of the Organization.
Article 30
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director General of the International Labour
Office for registration. Such denunciation shall not take effect until one year after
the date on which it is registered with the International Labour Office.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of five years and, thereafter, may
denounce this Convention at the expiration of each period of five years under the
terms provided for in this Article.
Article 31
At such times as it may consider necessary the Governing Body of the
International Labour Office shall present to the General Conference a report on
the working of this Convention and shall examine the desirability of placing on
the agenda of the Conference the question of its revision in whole or in part.
Article 32
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, the ratification by a Member of the new revising Convention
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shall ipso jure involve denunciation of this Convention without any requirement
of delay, notwithstanding the provisions of Article 30 above, if and when the new
revising Convention shall have come into force.
2. As from the date of the coming into force of the new revising Convention, the
present Convention shall cease to be open to ratification by the Members. 3.
Nevertheless, this Convention shall remain in force in its actual form and content
for those Members which have ratified it but have not ratified the revising
Convention.
Article 33
The French and English texts of this Convention shall both be authentic.
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Article 3
The formal ratifications of this Convention shall be communicated to the
Director-General of the International Labour Office for registration.
Article 4
1. This Convention shall be binding only upon those Members of the International
Labour Organization whose ratifications have been registered with the Director-
General.
2. It shall come into force twelve months after the date on which the ratifications
of two Members have been registered with the Director General.
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3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Article 5
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director-general of the International Labour
Office for registration. Such denunciation shall not take effect until one year after
the date on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of ten years and, thereafter, may
denounce this Convention at the expiration of each period of ten years under the
terms provided for in this Article.
Article 6
1. The Director-General of the International Labour Office shall notify all
Members of the International Labour Organization of the registration of all
ratifications and denunciations communicated to him by the Members of the
Organization.
2. When notifying the Members of the Organization of the registration of the
second ratification communicated to him,the DirectorGeneral shall draw the
attention of the Members of the Organization to the date upon which the
Convention will come into force.
Article 7
The Director-General of the International Labour Office shall communicate to
the Secretary-General of the United Nations for registration in accordance with
Article 102 of the Charter of the United Nations full particulars of all ratifications
and acts of denunciation registered by him in accordance with the provisions of
the preceding Articles.
Article 8
At such times as it may consider necessary the Governing Body of the
International Labour Office shall present to the General Conference a report on
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the working of this Convention and shall examine the desirability of placing on
the agenda of the Conference the question of its revision in whole or in part.
Article 9
1. Should the Conference adopt a new Convention revising this Convention in
whole or in part, then, unless the new Convention otherwise provides:
(a) The ratification by a Member of the new revising Convention shall ipso jure
involve the immediate denunciation of this Convention, notwithstanding the
provisions of Article 5 above, if and when the new revising Convention shall have
come into force;
(b) As from the date when the new revising Convention comes into force this
Convention shall cease to be open to ratification by the Members.
2. This Convention shall in any case remain in force in its actual form and content
for those Members which have ratified it but have not ratified the revising
Convention.
Article 10
The English and French versions of the text of this Convention are equally
authoritative.
Peoples Union for Democratic Rights v. Union of India, AIR 1982 SC 1943.
In the case of People’s Union for Democratic Rights v. Union of India, the
petitioner was an organization formed for the protection of democratic rights. It
undertook efforts to investigate the conditions under which the workmen
employed in various Asiad projects were working. This investigation found out
that various labour laws were being violated and consequently public interest
litigation was initiated. In the case issues like labourers not given the minimum
remuneration as mentioned in the minimum wages act, 1948 and unequal income
distribution among men and women were highlighted.
The Supreme Court interpreted the scope of article 23 in the case. The Court held
that the word force within this article has a very wide meaning. It includes
physical force, legal force and other economic factors which force a person to
provide labour at a wage less than the minimum wage. Hence, if a person is
forced to provide labour for less than the minimum wage, just because of poverty,
want, destitution or hunger, it would be accounted for as forced labour.
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The Court also clarified the meaning of “all similar forms of forced labour” as
mentioned in article 23 of the Constitution of India. It said that not only begar, but
all forms of forced labour are prohibited. This means that it would not matter if a
person is given remuneration or not as long as he is forced to supply labour
against his will.
In the case of Sanjit Roy v. State of Rajasthan, the state employed a large number
of workers for the construction of a road to provide them relief from drought and
scarcity conditions prevailing in their area. Their employment fell under the
Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act,
1964. The people employed for the work were paid less than the minimum wage,
which was allowed in the Exemption Act.
The Court held that the Rajasthan Famine Relief Works Employees (Exemption
from Labour Laws) Act, 1964 is Constitutionally invalid as to the exclusion of the
minimum wages act. This means that minimum wage must be paid to all the
people employed by the state for any famine relief work, regardless of whether
the person is affected by drought or scarcity or not. This is essential so that the
state does not take advantage of the helpless condition of the people affected by
famine, drought etc and upholds that they must be paid fairly for the work into
which they put in effort and sweat, and which provides benefits to the state.
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where it was found that these contained a large number of workers working in
“inhuman and intolerable conditions”, and many of them were forced labourers.
The Court laid down guidelines for determination of bonded labourers and also
provided that it is the duty of the state government to identify, release and
rehabilitate the bonded labourers. It was held that any person who is employed as
a bonded labour is deprived of his liberty. Such a person becomes a slave and his
freedom in the matter of employment is completely taken away and forced labour
is thrust upon him. It was also held that whenever it is shown that a worker is
engaged in forced labour, the Court would presume he is doing so in
consideration of some economic consideration and is, therefore, a bonded labour.
This presumption can only be rebutted against by the employer and the state
government if satisfactory evidence is provided for the same.
Article 23, clause 2 of the Constitution states that this article does not prevent the
state to impose compulsory services for public purposes. It also states that while
doing this, the state must not make any discrimination on grounds of religion,
race, caste, class or any of them.
Hence, though article 23 disallow any form of forced labour, it permits the state to
engage in conscription (impose compulsory services upon people for public
purposes). However, while imposing services upon people for state services the
state must take care to not discriminate on grounds of religion, race, caste or class.
In the case of Dulal Samanta v. D.M., Howrah, the petitioner was served with a
notice appointing him as a special police officer for a period of three months. He
complained that this violated his fundamental right as it results in “forced labour”
The Court disregarded his appeal and held that conscription for services of police
cannot be considered as either:
(i) beggar; or
(ii) Traffic in human beings; or
(iii) Any similar form of forced labour.
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Hence, the notice given for the appointment of a person as a special police officer
is not in prohibition to Article 23.
Article 39 of the Constitution states that it is the duty of the state to ensure that the
tender age of children is not abused and that they are not forced by economic
necessity to enter into fields of work where they are forced to provide labour
which is unsuitable to their age and strength
Article 24 states that any child under the age of fourteen years can not be
employed as a worker in any factory or be engaged in any other hazardous
employment.
People’s Union for Democratic Rights v. Union of India, AIR 1983 SC 1473
In the case of People’s Union for Democratic Rights v. Union of India, the
petitioner observed the conditions in which the workers employed in various
Asiad projects were working. It was observed that children under the age of
fourteen had been employed. It was however contended that such employment
was not against the Employment of Children Act, 1938 since the act did not list
the construction industry as a hazardous industry.
The Court held that the construction work falls in the field of hazardous
employment. Thus, children under the age of fourteen must not be employed in
the construction work even though it has not been mentioned explicitly under the
Employment of Children Act 1938. The Court also advised the state government
to amend the schedule and change the omission to include the construction
industry into the list of hazardous industries.
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In the case of M.C. Mehta v. State of Tamil Nadu, Shri MC Mehta undertook to
invoke Article 32, enabling the Court to look into the violation of fundamental
rights of children guaranteed to them under Article 24. Sivakasi was considered as
a big offender who was employing many child labourers. It was engaged in the
manufacturing process of matches and fireworks. This, the Court observed,
qualified as a hazardous industry. Thus employing children under the age of 14
years in this industry is prohibited.
The Court reaffirmed that children below the age of fourteen must not be
employed in any hazardous industry and it must be seen that all children are given
education till the age of 14 years. The Court also considered Article 39(e) which
says that the tender age of children must not be abused and they must be given
opportunities to develop in a healthy manner. In light of this, the Court held that
the employer Sivakasi must pay a compensation of Rs. 20000 for employing
children in contravention to Child Labour (Prohibition and Regulation) Act,
1986.
Conclusion
The stronger have exploited the weak since ancient ages. In India as well the
practice of exploitation is largely present. There are many areas in the country
where “untouchables” were being exploited in several ways by the higher castes
and richer classes. For instance, in many industries in India like brick kilns,Carpet
weaving, embroidery etc, many Bangladeshi and Nepali migrants are being
subjected to forced labour. This is seen as employers recruit them through fraud
and debt bondage. Such exploitation must be eradicated.
Also, Child labour is a bane for the nation. It is a shameful practise which harms
the welfare and development of the children as well as the entire nation. India still
has approximately 30 million child labourers. This is horrifying and It is high time
to eradicate this horrible practice and punish the offenders.
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arrangements are governed by the commercial legislations. The second type of job
contracts includes the arrangements where work is performed by individual
contractors or sub-contractors whose relationship with the user enterprise differs
from that existing between truly independent businesses2. The work is actually
done by the labourers engaged by such contractor. Such individual workers may
normally carry out certain work or services for the same user enterprise on a
permanent or periodical basis and are, to a certain extent, economically dependent
on it3. The user companies may also exercise control over the performance of
services and in spite of their formal independence, the individual workers actually
have a status which is very close to that of a traditional employment24. It is this
kind of arrangements which are covered under the concept of contract labour and
need specific labour legislation.
The International Labour Organization has defined contract labour as, “For the
purpose of the proposed convention the term ‘contract labour’ should mean work
performed for a natural or legal person (referred to as a ‘user enterprise’) by a
person (referred to as a ‘contract worker’), pursuant to a contractual agreement
other than a contract of employment with the user enterprise, under actual
conditions of dependency or subordination to the user enterprise, where those
conditions are similar to those that characterize an employment relationship under
natural law and practice”4.
The Contract Labour (Regulation and Abolition) Act, 1970 defines contract
labour as, “A workman shall be deemed to be employed as contract labour in or
in connection with the work of an establishment when he is hired in or in
connection with such work by or through a contractor, with or without the
knowledge of the principal employer”.5
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2. It makes the availability of labour easy and flexible. It helps the employer to
terminate the services of the labour as per the requirements of the business to
sustain competitiveness.
5. It keeps the overhead costs low and relieves the employer from maintaining a
big centralized establishment. The employers can avail the benefits of
specialization.
6. Contract workers do not unite to fight for their causes. They are usually
standing in competition with each other. They are often afraid of losing jobs. It
weakens the labour solidarity in general. Employers justify it saying that it avoids
industrial unrest and consequential losses.
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7. The unwillingness to perform less skilled jobs on the part of educated youth is
also said to be a reason for the increase in contract labour system.
10. The failure of public sector and less motivation of Government employees for
work has led to increased use of contract workers in Government departments and
public undertakings. It encourages the unrestricted use and abuse of contract
labour in private enterprises. It is also one of the major reasons why the
Government is reluctant to amend the labour laws to protect contract labour as it
itself employs contract labour at a very large scale
Problems of contract workers are quite peculiar ones because there is a triangular
employment relationship. The basis to establish labour rights is the employer-
employee relationship which is a quite complex phenomenon in case of contract
labour. Some of the problems which are categorically faced by contract workers
are as under-
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In addition to the above stated problems, various other typical problems are faced
by migrant workers, women workers and their children due to poor
implementation of the Act. There is lack of sincerity on the part of the industrial
relations machinery and policy makers in ensuring compliance of the barest
minimum of the legislation.
The legislature of India had a vigilant eye on the matter when it went on to enact
the first regulation on contract labour named as Contract Labour (Regulation and
Abolition) Act, 1970. This enactment is still the key legislation regulating
contract labour in India.
The Contract Labour (Regulation and Abolition) Act 1970 (hereinafter named as
the Act) has been exclusively passed to protect and safeguard the interests of
contract labourers in India. A contract labourer is defined in the Act as one who is
hired in or in connection with the work of an establishment by or through a
contractor, with or without the knowledge of principal employer. (Section 2(1)
(b)). A principal employer is the person who has authorized control over the
establishment whereas a contractor is a person who procures labour for the user
enterprise and includes a sub-contractor. Contract labour system covered under
the Act includes both labour contracts as well as job contracts.
As per the object clause of the Act, this is an Act to regulate the employment of
contract labour in certain establishments and to provide for its abolition in certain
circumstances and for matters connected therewith. It is clear that the legislature
did not feel it expedient to completely do away with contract labour, since there
are several fields of employments where engagement of contract labour becomes
necessary in the interest of the industry. The Act seeks to fulfill the following
objectives-
1. The Act has been enacted to regulate the employment of contract labour in
certain establishments and to provide for its abolition in certain circumstances.
Thus, the Act does not provide for absolute prohibition on contract labour system
rather it retains the system with some regulations.
3. The Act provides for the setting up of Central Advisory Contract Labour Board
by the Central Government in Central sphere and State Advisory Contract Labour
Board by the State Governments to advice upon the matters arising out of the
administration of the Act.
5. There are certain welfare provisions in the Act and the Central Rules made
there under regarding the provisions of canteens, restrooms, sufficient drinking
water supply, latrines and urinals, washing facilities and first aid facilities for the
contract workers. The primary duty is cast upon the contractor and in case of
default; the principal employer is liable to provide the same.
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8. Apart from the regulatory provisions, section 10 of the Act enables the
Appropriate Government to prohibit employment of contract labour, by
notification, in any establishment or in any process, operation or other work.
Before issuing such notification, consultation is to be done with the respective
Advisory Board. Sub-section (2) of section 10 provides necessary guidelines in
this regard. The appropriate Government should decide upon the matter after
taking following guidelines into account-
3. Whether the work is being done ordinarily through regular workmen in that
establishment or in a similar establishment?
4. Conditions of work and benefits provided to the contract labour where the work
is of perennial nature.
There are Central Rules named as the Contract Labour (Regulation and Abolition)
Central Rules, 1971 and state level rules, for example, in Punjab, The Punjab
Contract Labour (Regulation and Abolition) Rules, 1973. These Rules further
clarify the provisions of the Act and thereby help in safeguarding interests of
contract workers. There are some other labour laws which are applicable to
contract labourers also, such as, Employees Provident Funds and Miscellaneous
Provisions Act, 1952, Employees State Insurance Act, 1948, Employees
Compensation Act, 1923, The Minimum Wages Act, 1948, the Factories Act,
1948 and to some extent the Industrial Disputes Act, 1947 also.
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under section 2 (k) of The Industrial Disputes Act, 1947 and justifiability of the
tribunal in interfering with the management's rights. The Supreme Court, negating
the contentions of the employer, observed that contract labour system is primitive
and baneful. The Court directed the company to discontinue the practice of
contract labour and to have the work done through workmen engaged by it.
After the enactment of Contract Labour (Regulation and Abolition) Act, 1970,
the courts used to make orders for the abolition of contract labour but not any
specific relief was granted in favour of the contract labourers. In Gujrat
Electricity Board v. Hind Mazdoor Sabha and Others AIR 1995 SC 1893,
Supreme Court held that it is only the Appropriate Government to decide whether
the system of contract labour should be abolished or not. The Act is silent on the
issue of status of workman after the abolition of contract labour system in an
establishment i.e. whether it will amount to automatic absorption of the already
working contract labourers or it will have the effect of throwing them away from
the workplace.
In the case of Air India Statutory Corporation v. United Labour Union, 1997
(9) SCC 377 Supreme Court clearly ordered in favour of automatic absorption of
contract labour on abolition of contract labour system under section 10 and held
that contract workers can avail of the remedy under Art.226 of the Constitution
also. Thus, a writ or an order may be passed by a High Court or the Supreme
Court to direct the employer to absorb or re-employ the already working contract
labourers in preference to the new applicants.
The doors of judiciary which were opened in Air India Case were shut down in
The Steel Authority of India Ltd. v. National Union for Waterfront Workers.
(2001) 7 SCC 1. Supreme Court overruled the judgment of Air India Case and
prospectively held that there cannot be any automatic absorption of the workmen
of the contractor if the contract labour system is abolished. Afterwards in Cipla
Ltd v. Maharashtra General Kamgar 2001 CLR 1754 SC , Court denied relief
on the ground that employer-employee relationship could not be established.
Employer-employee relationship is quite difficult to prove in contractual
employments entered by or through contractors.
The Contract Labour (Regulation and Abolition) Act, 1970 and the Central Rules
made there under have been in force for more than four decades but the conditions
of contract labourers are becoming worse to worst in the changed economic
realities. The Act has failed to achieve its desired objectives. Even the
interpretation of its provisions by the Supreme Court and various High Courts are
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now being used for purposes contrary to the objectives of the Act. Its
implementation has not been satisfactory
INTRODUCTION
Children enjoy the same human rights accorded to all people. But, lacking the
knowledge, experience or physical development of adults and the power to defend
their own interests in an adult world, children also have distinct rights to
protection by virtue of their age. One of these is protection from economic
exploitation and from work that is dangerous to the health and morals of children
or hampers the child’s development. The principle of the effective abolition of
child labour means ensuring that every girl and boy has the opportunity to
develop physically and mentally to her or his full potential. Its aim is to stop all
work by children that jeopardizes their education and development. This does not
mean stopping all work performed by children. International labour standards
allow the distinction to be made between what constitutes acceptable and
unacceptable forms of work for children at different ages and stages of
development. The principle extends from formal employment to the informal
economy where the bulk of the unacceptable forms of child labour are found. It
covers family-based enterprises, agricultural activities, domestic service and
unpaid work carried out under various customary arrangements such as children
working in return for their keep. To achieve the effective abolition of child labour,
governments should fix and enforce a minimum age or ages at which children can
enter into different types of work. Within limits, these ages may vary according to
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national social and economic circumstances. However, the general minimum age
for admission to employment should not be less than the age of completion of
compulsory schooling and never be less than 15 years. In some instances,
developing countries may make exceptions to this, and a minimum age of 14
years may be applied where the economy and educational facilities are
insufficiently developed. Certain types of work categorized as “the worst forms of
child labour” are totally unacceptable for all children under the age of 18 years,
and their abolition is a matter for urgent and immediate action. These forms
include such inhumane practices as slavery, trafficking, debt bondage and other
forms of forced labour; prostitution and pornography; forced recruitment of
children for military purposes; and the use of children for illicit activities such as
the trafficking of drugs. Dangerous work that can harm the health, safety or
morals of children are subject to assessment by governments in consultation with
workers’ and employers’ organizations. A key characteristic of any effective
strategy to abolish child labour is the provision of relevant and accessible basic
education. However, education must be an integral part of a wide range of
measures that combat many factors, such as poverty, lack of awareness of
children’s rights and inadequate systems of social protection that give rise to child
labour and allow it to persist.
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shall take the form of an international Convention, adopts this twenty-sixth day of
June of the year one thousand nine hundred and seventy-three the following
Convention, which may be cited as the Minimum Age Convention, 1973:
Article 1
Article 2
2. Each Member which has ratified this Convention may subsequently notify the
Director-General of the International Labour Office, by further declarations, that
it specifies a minimum age higher than that previously specified.
(b) That it renounces its right to avail itself of the provisions in question as from
a stated date.
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Article 3
1. The minimum age for admission to any type of employment or work which by
its nature or the circumstances in which it is carried out is likely to jeopardize the
health, safety or morals of young persons shall not be less than 18 years.
Article 4
2. Each Member which ratifies this Convention shall list in its first report on the
application of the Convention submitted under Article 22 of the Constitution of
the International Labour Organization any categories which may have been
excluded in pursuance of paragraph 1 of this Article, giving the reasons for such
exclusion, and shall state in subsequent reports the position of its law and practice
in respect of the categories excluded and the extent to which effect has been given
or is proposed to be given to the Convention in respect of such categories.
Article 5
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workers concerned, where such exist, initially limit the scope of application of
this Convention.
4. Any Member which has limited the scope of application of this Convention in
pursuance of this Article:
(a) shall indicate in its reports under Article 22 of the Constitution of the
International Labour Organization the general position as regards the employment
or work of young persons and children in the branches of activity which are
excluded from the scope of application of this Convention and any progress which
may have been made towards wider application of the provisions of the
Convention;
(B) May at any time formally extend the scope of application by a declaration
addressed to the Director-General of the International Labour Office.
Article 6
This Convention does not apply to work done by children and young persons in
schools for general, vocational or technical education or in other training
institutions, or to work done by persons at least 14 years of age in undertakings,
where such work is carried out in accordance with conditions prescribed by the
competent authority, after consultation with the organizations of employers and
workers concerned, where such exist, and is an integral part of:
Article 7
Article 8
2. Permits so granted shall limit the number of hours during which and prescribe
the conditions in which employment or work is allowed.
Article 9
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2. National laws or regulations or the competent authority shall define the persons
responsible for compliance with the provisions giving effect to the Convention.
Article 10
1. This Convention revises, on the terms set forth in this Article, the Minimum
Age (Industry) Convention, 1919, the Minimum Age (Sea) Convention, 1920, the
Minimum Age (Agriculture) Convention, 1921, the Minimum Age (Trimmers and
Stokers) Convention, 1921, the Minimum Age (Non-Industrial Employment)
Convention, 1932, the Minimum Age (Sea) Convention (Revised), 1936, the
Minimum Age (Industry) Convention (Revised), 1937, the Minimum Age
(Nonindustrial Employment) Convention (Revised), 1937, the Minimum Age
(Fishermen) Convention, 1959, and the Minimum Age (Underground Work)
Convention, 1965.
2. The coming into force of this Convention shall not close the Minimum Age
(Sea) Convention (Revised), 1936, the Minimum Age (Industry) Convention
(Revised), 1937, the Minimum Age (nonindustrial Employment) Convention
(Revised), 1937, the Minimum Age (Fishermen) Convention, 1959, or the
Minimum Age (Underground Work) Convention, 1965, to further ratification.
3. The Minimum Age (Industry) Convention, 1919, the Minimum Age (Sea)
Convention, 1920, the Minimum Age (Agriculture) Convention, 1921, and the
Minimum Age (Trimmers and Stokers) Convention,1921,shall be closed to
further ratification when all the parties thereto have consented to such closing by
ratification of this Convention or by a declaration communicated to the Director-
General of the International Labour Office.
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(a) Shall involve the denunciation of the Minimum Age (Industry) Convention,
1919, in accordance with Article 12 thereof;
(b) In respect of agriculture shall involve the denunciation of the Minimum Age
(Agriculture) Convention, 1921, in accordance with Article 9 thereof;
Article 11
Article 12
1. This Convention shall be binding only upon those Members of the International
Labour Organization whose ratifications have been registered with the Director-
General.
2. It shall come into force twelve months after the date on which the ratifications
of two Members have been registered with the Director-General.
3. Thereafter, this Convention shall come into force for any Member twelve
months after the date on which its ratification has been registered.
Article 13
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director-general of the International Labour
Office for registration. Such denunciation shall not take effect until one year after
the date on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of ten years and, thereafter, may
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denounce this Convention at the expiration of each period of ten years under the
terms provided for in this Article.
Article 14
Article 15
Article 16
Article 17
(a) The ratification by a Member of the new revising Convention shall ipso jure
involve the immediate denunciation of this Convention, notwithstanding the
provisions of Article 13 above, if and when the new revising Convention shall
have come into force;
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(b) As from the date when the new revising Convention comes into force this
Convention shall cease to be open to ratification by the Members. 2. This
Convention shall in any case remain in force in its actual form and content for
those Members which have ratified it but have not ratified the revising
Convention.
Article 18
The English and French versions of the text of this Convention are equally
authoritative.
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instruments, in particular the Forced Labour Convention, 1930, and the United
Nations Supplementary Convention on the Abolition of Slavery, the Slave Trade,
and Institutions and Practices Similar to Slavery, 1956, and Having decided upon
the adoption of certain proposals with regard to child labour, which is the fourth
item on the agenda of the session, and Having determined that these proposals
shall take the form of an international Convention; adopts this seventeenth day of
June of the year one thousand nine hundred and ninety-nine the following
Convention, which may be cited as the Worst Forms of Child Labour Convention,
1999.
Article 1
Each Member which ratifies this Convention shall take immediate and effective
measures to secure the prohibition and elimination of the worst forms of child
labour as a matter of urgency.
Article 2
For the purposes of this Convention, the term “child” shall apply to all persons
under the age of 18.
Article 3
For the purposes of this Convention, the term “the worst forms of child labour”
comprises:
(a) all forms of slavery or practices similar to slavery, such as the sale and
trafficking of children, debt bondage and serfdom and forced or compulsory
labour, including forced or compulsory recruitment of children for use in armed
conflict;
(b) The use, procuring or offering of a child for prostitution, for the production of
pornography or for pornographic performances;
(c) The use, procuring or offering of a child for illicit activities, in particular for
the production and trafficking of drugs as defined in the relevant international
treaties;
(d) Work which, by its nature or the circumstances in which it is carried out, is
likely to harm the health, safety or morals of children.
Article 4
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3. The list of the types of work determined under paragraph 1 of this Article shall
be periodically examined and revised as necessary, in consultation with the
organizations of employers and workers concerned.
Article 5
Article 6
Article 7
1. Each Member shall take all necessary measures to ensure the effective
implementation and enforcement of the provisions giving effect to this
Convention including the provision and application of penal sanctions or, as
appropriate, other sanctions.
(a) Prevent the engagement of children in the worst forms of child labour;
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(b) Provide the necessary and appropriate direct assistance for the removal of
children from the worst forms of child labour and for their rehabilitation and
social integration;
(c) Ensure access to free basic education, and, wherever possible and appropriate,
vocational training, for all children removed from the worst forms of child labour;
3. Each Member shall designate the competent authority responsible for the
implementation of the provisions giving effect to this Convention.
Article 8
Members shall take appropriate steps to assist one another in giving effect to the
provisions of this Convention through enhanced international cooperation and/or
assistance including support for social and economic development, poverty
eradication programmes and universal education.
Article 9
Article 10
1. This Convention shall be binding only upon those Members of the International
Labour Organization whose ratifications have been registered with the Director-
General of the International Labour Office.
2. It shall come into force 12 months after the date on which the ratifications of
two Members have been registered with the Director General.
3. Thereafter, this Convention shall come into force for any Member 12 months
after the date on which its ratification has been registered.
Article 11
1. A Member which has ratified this Convention may denounce it after the
expiration of ten years from the date on which the Convention first comes into
force, by an act communicated to the Director-general of the International Labour
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Office for registration. Such denunciation shall not take effect until one year after
the date on which it is registered.
2. Each Member which has ratified this Convention and which does not, within
the year following the expiration of the period of ten years mentioned in the
preceding paragraph, exercise the right of denunciation provided for in this
Article, will be bound for another period of ten years and, thereafter, may
denounce this Convention at the expiration of each period of ten years under the
terms provided for in this Article.
Article 12
Article 13
Article 14
Article 15
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(a) the ratification by a Member of the new revising Convention shall ipso jure
involve the immediate denunciation of this Convention, notwithstanding the
provisions of Article 11 above, if and when the new revising Convention shall
have come into force;
(b) as from the date when the new revising Convention comes into force, this
Convention shall cease to be open to ratification by the Members. 2. This
Convention shall in any case remain in force in its actual form and content for
those Members which have ratified it but have not ratified the revising
Convention.
Article 16
The English and French versions of the text of this Convention are equally
authoritative.
Domestic work is work. Domestic workers are, like other workers, entitled to
decent work.
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Convention No. 189 offers specific protection to domestic workers. It lays down
basic rights and principles, and requires States to take a series of measures with a
view to making decent work a reality for domestic workers.
This work may include tasks such as cleaning the house, cooking, washing and
ironing clothes, taking care of children, or elderly or sick members of a family,
gardening, guarding the house, driving for the family, even taking care of
household pets.
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All domestic workers are covered by Convention No. 189, although countries
may decide to exclude some categories, under very strict conditions.
Who is the employer of a domestic worker?
The employer of a domestic worker may be a member of the household for which
the work is performed, or an agency or enterprise that employs domestic workers
and makes them available to households
Convention No. 189 affirms the fundamental rights of domestic workers. It sets
minimum labour standards for domestic workers. Domestic workers can:
• organize & mobilize support for the ratification and implementation of the
Convention by their Governments;
• use the provisions of the Convention and the Recommendation to influence
changes in laws and improve the working and living conditions of domestic
workers, regardless of whether or not the country in which they work has ratified
Convention No. 189.
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What are the minimum standards set by Convention No. 189 for domestic
workers?
• Effective protection against all forms of abuse, harassment and violence (Article
5).
Hours of work
• Regulation of stand-by hours (periods during which domestic workers are not
free to dispose of their time as they please and are required to remain at the
disposal of the household in order to respond to possible calls) (Article 10).
Remuneration
• Minimum wage if a minimum wage exists for other workers (Article 11).
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• Payment of wages must be paid in cash, directly to the worker, and at regular
interval of no longer than one month. Payment by cheque or bank transfer – when
allowed by law or collective agreements, or with worker’s consent (Article 12)
. • Fees charged by private employment agencies are not to be deducted from the
remuneration (Article 15).
• Measures are put in place to ensure workers’ occupational safety and health
(Article 13).
Social security
• Conditions that are not less favorable than those applicable to workers generally
(Article 14).
• Requirement to set a minimum age for entry into domestic work (Article 4).
• Domestic workers aged 15 years old but less than 18 years old – their work
should not deprive them of compulsory education, or interfere with their
opportunities for further education or vocational training (Article 4).
Decent living conditions that respect the workers’ privacy (Article 6).
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• Right to keep their identity and travel documents in their possession (Article 9).
• Regulation of stand-by hours (Article 10).
• Measures to be put in place to ensure compliance with national laws for the
protection of domestic workers, including labour inspection measures. In in
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regard, the Convention recognizes the need to balance domestic workers’ right to
protection and the right to privacy of the households’ members (Article 17).
The discussion on the international attempts for the protection of the rights of the
child brings about the question of application of the principles in the municipal
sphere, especially when India is a party to the international resolve to protect the
rights of the child. An analysis on the legal protection of rights of the child in
India in the light of the international move requires a four-fold exposition of the
concept, viz:
(i)Constitutional Protection
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Prior to the international conventions and resolutions, the Independent India has
formulated in its Constitution, provisions for the welfare of the children. Before
the adoption of the Indian Constitution itself, the Constitution of India Bill
1895(Home Rule Bill), Commonwealth of India Bill 1925 and the ‘objective
resolution’ adopted by the Constituent Assembly on 22 January 1947 contained
provisions meant for the protection of weaker sections 1. Starting from the
preamble itself of the Constitution, the unequivocal intention of the State to assure
protection to children can be seen, in either explicit or implied terms. The
preamble declares the resolve that the state will secure to the entire citizenry,
which comprises of children also social, economic and political justice, liberty of
thought, expression, belief, faith and worship along with equality of status and
opportunity. The concept of ‘social justice’ enshrined in the preamble can be
interpreted as a compendium of diverse principles essential for the orderly growth
and overall development of personality, which is the foundation of the human
rights jurisprudence for children.
Fundamental Rights
The judicial interpretation of part III of the Constitution paved way to the
assurance of protection of rights of children.
Article 14 guarantees equality before law and equal protection of law to all
persons within the territory of India. Thus nobody including the children
should be denied of equality of status, opportunity and protection.
Article 15 prohibits discrimination on the grounds of religion, race, caste,
sex, class, and place of birth or any of them. Article 15(3) which provides
for protective discrimination in favour of children, says:
“Nothing in this Article shall prevent state from making any special
provisions for women and children.”
Thus in explicit terms, Article 15(3) empowers the State to make special
provisions for children as and when it is necessary for the well-being of
children.2
The right to life in Article 21 encompasses all sections of the society including
women and children. And this right to live with human dignity is available to a
child also. In Vikram Deo Singh Tomar v. State of Bihar, 3 the Supreme Court
has taken note of the pitiable conditions prevailing in care homes maintained by
the State of Bihar for women and children and has directed the State to improve
matters in these homes and provide at least the minimum living conditions
ensuring human dignity. The court emphasized that India is a welfare state and the
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Article 21A makes the State duty bound to provide free and compulsory
education to all children below the age of fourteen years, 4 incorporating the
dictum delivered by the apex judiciary in Unnikrishnan v. State of A.P.5
Article 23 speaks of the prohibition of all forms of traffic in human beings
and beggar and other forms of forced labour.
Article 24 specifically prohibits employment of children below the age of
14 years in any factory, mine or in any other hazardous employment. This
provision is incorporated in the Constitution for the safety of the life of
children. In Labourers Working on Salal Hydro Project v. State of J. &
K. the court held that construction work is hazardous employment and
children below 14 years cannot be employed in such type of work. Article
24 makes it obligatory for the state to protect the economic, social and
humanitarian rights of millions of children working in factories and such
other work places.7 but this article does not prohibit the employment of
children in harmless job. It is quite interesting to note that the National
Commission to Review the Working of the Constitution had suggested to
add8 a new fundamental right in Article 24 A as follows: “Every child
shall have the right to care and assistance in basic needs and protection
from all forms of neglect, harm and exploitation.”
This part of the Constitution, viz., part IV, also clearly provides for policies
directed towards the welfare of the children, as this part has been designed to
“strive to promote the welfare of the people by securing and protecting as
effectively…10.
Article 39(a), (e) and (f) specifically provide certain policies to be
followed by the State for the welfare of the children. Article 39(f) provides
that children are given opportunities and facilities to develop in a healthy
manner and in condition of freedom and dignity and that childhood and
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youth are protected against exploitation and against moral and material
abandonment.
Article 41 asserts the responsibility of the State to make effective
provisions for securing the right to… education and to public assistance in
cases of. …sickness and disablement and in other cases of undeserved
want, within the limits of its economic capacity and development.11
Article 45 in explicit terms directs the State to endeavor to provide free and
compulsory education for all children until they complete the age of 14
years, within a period of 10 years from the commencement of the
constitution. This direction reflects the interest of the framers of the
constitution as regards the education of the children as education is the
foundation for a healthy and proper development of a child. 12 The State
responsibility to provide for just and humane conditions of work and
maternity relief, also ultimately aims at the well-being of children.
Article 46 stands for the promotion of the educational and economic
interests of the weaker sections of the people, and in particular, of the
Scheduled Castes and the Scheduled Tribes and for their protection from
social injustice and all forms of exploitation.
Article 47 castes upon the State the duty to raise the level of nutrition and
the standard of living and to improve public health.
The object of Directive Principles of State Policy explicit in all these provisions is
‘to embody the concept of welfare state’.13
Though Article 37 emphatically says in its first part that the rights contained in
Part IV are not enforceable in any court nor their alleged breach by any law can
be held to invalidate the law, the judicial wisdom has given more weight to the
second portion of article 37, viz., “..The principles therein laid down are
nevertheless fundamental in the governance of the country and it shall be the duty
of the State to apply these principles in making laws.”14
In yet another case, M.C.Mehta v. State of Tamilnadu 17the petition filed in the
interest of child labourers sought the attention of the apex court towards gross
violations of the fundamental rights of children employed in the Sivakasi area of
Tamil Nadu and the judiciary has analyzed the provisions contained in Articles
39(f) and 45 of the Constitution. The court thus, by extending the scope of
fundamental rights, brought the directives also amenable to writ jurisdiction.
Although the petition concerns only the child labour prevailing in the State of
Tamilnadu, particularly in the Sivakasi area, the Hon’ble Court, taking into
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“…Child labour by now is an all-India evil though its acuteness differs from area
to area. So without a concerted effort, both of the Central Government and
various State Governments, this ignobility would not get wiped out. …So we
would address ourselves as to how we can, and are required to, tackle the problem
of child labour, solution of which is necessary to build a better India…. Poverty is
the basic reason which compels parents of a child, despite their unwillingness, to
get it employed…Feeling that the problem would be taken care of to some extent
by insisting on compulsory education, the court is of the view that if employment
of a child below that age of 14 is a constitutional indication in so far as work in
any factory or mine or engagement in other hazardous work and if it has to be
seen that all children are given education till the age of 14 years in view of this
being a fundamental right now, and if the wish embodied in Article 39(e) that the
tender age of children is not abused and citizens are not forced by economic
necessity to enter a vocation unsuited to their age, and if children are to be given
opportunities and facilities to develop in a healthy manner and childhood is to be
protected against exploitation as visualized by Article 39(f), it seems to us that the
least we ought to do is see to the fulfillment of legislative intendment behind the
enactment of Child Labour(Prohibition and Regulation) Act, 1986.”
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Introduction
The Child Labour (Prohibition and Regulation) Act, 1986 is in place to fight
against the problem of child labour in our country. As the law was found to be
lacking, the Government decided to amend the Act. The amendments were first
introduced in 2012, thereupon in 2015 and finally it is in on the 29th July 2016
that the Child Labour (Prohibition and Regulation) Amendment Bill, 2016 has
received the assent of the President.
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Child work, on the other hand, includes all paid and unpaid work for the
household or for the market, whether it is full-time or part-time. Participation in
household activities on a regular basis and for several hours in a day to relieve
adults for wage employment is also included in this definition. The ILO, however,
argues that it is not concerned with children helping in family farms or doing
household chores.5
Child labour is a socio-economic problem. Parents for the reason of poverty have
to send their children in order to supplement their income derived from child
labour, however meager, are essential to sustain the family. The major reason that
creates the circumstances for a child to work as a child labour includes the
following.
Socio-economic backwardness
Poverty
Illiteracy
Unemployment
Over-population
The enforcing machinery, which are provided by the state governments, are
inadequate almost everywhere and fail to check up on child labour.
The children are mostly silent listeners or non-listeners of the policies and
programmes meant for them and hence, their problems are not properly realized
and the safeguards extended for the prevention of child labour are not
implemented effectively.
Salient Features of The Child Labour (Prohibition and Regulation) Act, 1986
The Child Labour (Prohibition and Regulation) Act, 1986 was the culmination of
effort and ideas that emerged from the deliberations and recommendations of
various committees on child labour. Significant among them are the National
Commission on Labour (1966-69), Gurupadaswamy Committee on Child Labour
(1979), Sanat Mehta Committee (1984) and others.
The legislature strongly desired prohibition of child labour and the Child Labour
(Prohibition and Regulation) Act, 1986 is in itself, ex facie, a bold step towards
that goal. As its preamble indicates that it has twin objective: it intended to
prohibit the engagement of children in certain employments and to regulate the
conditions of work of children in certain other employments where children are
allowed to work.7
There are a number of Acts that prohibit the employment of children below 14
years and 15 years in certain specified employments, for example, Section 67 of
the Factories Act, 1948, Section 45 of the Mines Act, 1952, etc. However, there
existed no procedure in any of the law for deciding in which employments or
processes the employment of children should be banned. Also there was no law to
regulate the working conditions of children in the employments where they were
not prohibited to work and consequently were exploited. Thus, the Act was passed
with the following aims and objects:
Ban the employment of children, that is, those who have not completed
their fourteenth year of age, in specified occupations and processes
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The Act makes it clear that the rights of the child are inalienable and
indivisible.10Further any person who engages into the child labour practice shall
be criminally liable under the Act of 1986 as well as his civil liability to pay
compensation arises out of violation of the fundamental rights.11
The Act received the President’s assent on December 23, 1986. Section 1 (2) of
the Act provides that it extends to the whole of India. It has been provided under
Section 1(3) that the provisions of this Act, other than Part III, shall come into
force at once and Part III shall come into force on such dates as the Central
Government may, by notification in the Official Gazette appoint, and different
dates may be appointed for different states and different class of establishments.
The Act also provides the definitions of the various concepts in Section 2. They
are:
Child means a person who has not completed his fourteenth year of age
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The Supreme Court has taken certain pragmatic steps towards effective
implementation of the policy. They are:
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11. With regard to non-hazardous jobs, the Inspectors shall have to see that
the working hours of the children are not more than four to six hours a day and
that they receive education at least for two hours each day. It would also be seen
that the entire cost of education is borne by the employer.14
Appointment of the Child Labour Technical Advisory Committee (Section 5)
The Central Government may by notification in the Official Gazette,
constitute an advisory committee called the Child Labour Technical Advisory
Committee to advise the Central Government for the purpose of addition of
occupations and processes to the Schedule.
The Committee shall consist of a Chairman and such other members not
exceeding 10, as may be appointed by the Central Government
The Committee shall meet as often as it may consider necessary and shall
have power to regulate its own procedure
This committee also has the power to constitute a sub-committee.15
In addition, a Central Advisory Board on Child Labour has also been
constituted to review the implementation of the existing legislations and suggest
measures for welfare of working children. Current Composition of the Board may
be seen by clicking here.
Also, in order to monitor the functioning of the National Child Labour Projects
(NCLPs), a Central Monitoring Committee has been formed. The Committee
sees the overall supervision, monitoring and evaluation of the National Child
Labour Projects. It is set up under the Chairmanship of Secretary, Ministry of
Labour & Employment with representative of State Governments and concerned
Ministries/Departments.16
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heads, such as, cleanliness in the place of work and its freedom from nuisance,
disposal of wastes and effluents, ventilation and temperature, lighting, drinking
water, latrines and urinals, spittoons, fencing of machinery, employment of
children on dangerous machines, excessive weights, protection of eyes, explosive
or inflammable gases, etc.
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In Ram Chander v. State of U.P.,23the petitioner was prosecuted under the Child
Labour (Prohibition and Regulation) Act, 1986 for having employed a person
below the age of 12 years in his carpet loom. The Trial Court had put the burden
of proving the age of the child on the accused. The High Court allowed the
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revision and held that the trial court had erred in its judgment because to justify a
conviction under Section 14(1), the burden of proving the age of the child is upon
the prosecution, and not the accused.
In Raj Homes Pvt. Ltd. v. State of M.P., the petitioner was involved in selling of
houses and the labourers were employed by the contractors. The Assistant Labour
Commissioner, Bhopal issued a show cause notice to the petitioner for violation
of Section 3 of the Child Labour (Prohibition and Regulation) Act. The petitioner
challenged the order of the said authority to pay Rs. 20,000 per labour and also to
release the child labourer in his employment. In case the petitioner does not
deposit the amount it shall be considered as disobedience of the order of the
Supreme Court and the amount shall be recovered as arrears of land revenue. The
petitioner contended that proper inquiry had not been conducted before passing
the order and he was not given an opportunity of being heard. The High Court
however, dismissed the order on account that an opportunity of being heard had
been given.25
The Karnataka High Court held that it is no doubt true that Section 14 provides
for a penalty of Rs. 20,000/- by way of fine. A procedure is also prescribed in
terms of Section 16. But what cannot be forgotten by this Court is the law
declared by the Supreme Court in the case of M.C. Mehta v. State of Tamil Nadu
27
wherein it was ruled in Para 27 that the offending employer must pay
compensation of Rs. 20,000 for every child employed in contravention of the
provisions of the Act and the Inspectors, whose appointment is visualized by
Section 17 have to secure compliance with this provision. The said sum could be
deposited in a fund to be known as Child Labour Rehabilitation-cum-Welfare
Fund.
It was held that an order for paying compensation is in terms of the direction of
the Supreme Court and that cannot be confused with levy of fine by way of
penalty under Section 14 of the Act. Penal fine is different from compensation.
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Every rule made by a State Government under this Act shall be laid as soon as
may be after it is made, before the legislature of the State.31
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