~THOMAS PAUL, CHILD LABOUR- PROHIBITION V.

ABOLITION: UNTANGLING
THE CONSTITUTIONAL TANGLE: A REVIEW AND COMMENTARY ON THE
PRESENT POSITION OF CHILD LABOUR1~
- By Favi Singla

“Child Labour is the enemy of Child Education.”2

Thomas Paul, an Associate Research Professor at India Law Institute, delves into the
constitutional perspective of child labour and attempts to untangle the long standing knot of
Prohibition as against abolition of child labour. The Author takes a descriptive approach in this
article wherein the personal opinions and analysis of the topic by the author are predominantly
highlighted in the conclusive part of the article. The article as eloquently articulated by the
Author can be divided in two sections i.e. “Understanding Child Labour” and “The
Constitutional Framework and Perspective” for an efficient review of the same.

-UNDERSTANDING CHILD LABOUR-

Thomas Paul addresses the complexities and origin of concept of child labour and opines that
child labour is economically unsound, psychologically disastrous and physically as well as
morally dangerous and harmful.3 He takes a mention and readily agrees with the views of the
second national commission on labour which concluded that all forms of works are bad for
children and any distinction between the type of work is completely arbitrary. 4 He provides that
each work environment has deep rooted repercussions on children’s human rights, healthcare and
future economic production processes. He goes on to claim that despite ratification of
international conventions and constitutional safeguards, our country has failed to remedy the
ongoing situation and still holds the dubious position of largest continent of child labour and the
maximum number of juvenile illiterates in the world.5

1
Thomas Paul, Child Labour- Prohibition v. Abolition: Untangling the Constitutional Tangle, 50(2) JILI 143
(2008).
2
Justice V.R. Krishna Iyer, Jurisprudence of Juvenile Justice: A Preambular Perspectives, International Conference
on Shaping the Future by Law: Children, Environment and Human Health, 1994,
http://14.139.60.114:8080/jspui/bitstream/123456789/1225/1/008_Jurisprudence %20of%20Juvenile
%20Justice.pdf)
3
Report of the Committee on Child Labour 10 (Government of India, Gurupadaswamy Committee Report, 1979.)
4
Report of the Study Group 167-68 (Second National Commission on Labour, 2001).
5
Joe Arimpoor, Profile of the Child Worker 44 SOCIAL ACTION 59 (1994).
The author goes on further to elaborate on certain causing factors of child labour and provides
that excruciating poverty is more or less the predominant factor for perpetuating child labour
along with political ideology, economic self-interest, economic compulsion and exploitation of
poverty. He further provides for push and pull factors wherein supply and demand factors also
weigh in the causation of child labour. He goes on to elaborate certain consequences of this
atrocity which ends up hurting future prospects of these poverty ridden children and represents
premature expenditure rather than saving.6 He provides that child labour is as much the cause as
also consequence of adult unemployment and under-employment.
The author interrelates child education and child labour and advocates the thought of illiteracy
and child labour going hand in hand. He gives the example of Kerala where child labour is
almost non-existent because the literacy rate is cent percent, enrolment to schools and meals are
free and the minimum wages is higher than elsewhere in India. 7 All these factors contribute to
encouraging parents to send their children to school and the accountability of schools for
enrolment and the fear of division cut keeps even the teachers on their toes which leads to
significant low rates of child labour in Kerala.

-THE CONSTITUTIONAL FRAMEWORK AND PERSPECTIVE-

Thomas Paul makes a mention of numerous provisions of Constitution which provide for
children and their welfare and for that purpose, also quotes’ preamble which secures justice to all
citizens. He further goes on to provide that despite such mandates, the reality remains different
and a distinction between the rich, who get all the best facilities and development and are termed
as “minds”, and the poor, who are left as mere ‘hands’ of the society is made. 8 He asserts that
incidence of poverty is often taken as an alibi for children not going to school, having been
diverted to do child labour.
Further, he divides the constitutional perspective in two dominant arguments and analyses both
the arguments in detail:

THE ABOLITION ARGUMENT

6
Government of India, Report of the Committee on Child Labour 9 (1979).
7
Samuel Grumiau, Child Labour : Kerala's Recipe 17 WORKERS ONLINE (1999).
8
Myron Weiner, The Child and the State in India 107 (1991).
The author provides that this view argues that the Constitution completely outlaws child labour
and therefore, an enactment that abolishes the practice should be made. This argument connotes
a wider meaning to the word “hazardous” and does not restrict it to just physical hazards. It
argues that any work which affects the mental, moral and physical growth of children needs to be
categorized as hazardous. He quotes Upendra Baxi and provides that a fundamentalist reading of
the Article 249, 4510 and 3911 of the Constitution shows that the Constitution outlaws child
labour.12 It focuses on a supplementary reading of fundamental rights and directive principles
and highlights government’s vested interest in keeping the masses uneducated and advocates the
claim that the government does not intend to wipe out child labour but only aims to introduce a
benignant component in a malignant operation.13 The arguments asserts interpretation of
“hazardous” in terms of tender age of children and not that of an adult and further emphasises on
the alarming need of educational mandate to cross out child labour from our Indian demography.

THE PROHIBITION ARGUMENT

The author presents this argument through various opinions put forth by the union ministers and
judges. This argument is a literal interpretation of Article 24 and dubs child labour as a harsh
reality and an “economic necessity”. The argument asserts that the maximum effort to curb just
problem is by regulating the employment of children rather than wiping it out completely. This
view is supported by the government and by the International Labour Organisation wherein the
Child Labour (Prohibition and Regulation) Act, 1986 is the enunciation of this fact. The
argument follows the rule of banning it where possible and regulating it wherever it is not
possible. Economic necessity so as to save indignant families, current economic position of the
country and impracticality of abolishing child labour are cited as reasons of this argument. The
argument entails that instead of abolishing, the conditions of working environment can be
improved instead on the lines of “earning while learning” motto.

-CONCLUSION BY THE AUTHOR-

9
Art. 24, the Constitution of India.
10
Art. 45, the Constitution of India.
11
Art. 39, the Constitution of India.
12
Mainstream, vol. XXXI, No. 44 at 18 (1993).
13
Justice V.R. Krishna Iyer, Jurisprudence of Juvenile Justice: A Preambular Perspectives, International
Conference on Shaping the Future by Law: Children, Environment and Human Health, 1994,
http://14.139.60.114:8080/jspui/bitstream/123456789/1225/1/008_Jurisprudence %20of%20Juvenile%20Justice.pdf.
Thomas Paul, after an elaborative discussion on imperatives of child labour and the
constitutional perspective, rightfully sides with the abolition argument and provides that a
practical approach cannot be equated with that of a correct one. He connotes the concept of
“hazardous” as relative and argues against pragmatism as far as child labour is concerned. He
emphasises on education being a fundamental right under Article 21A as per Unnikrishnan v.
State of Andhra Pradesh and asserts the need to revisit the concept of child labour. 14 He
advocates that having a law prohibiting child labour in all forms is better than not having a law at
all for the fear of non-implementation. He provides that the fear of non-implementation of law
banning child labour should not be taken as a justification for not enacting a law all together. He
finally emphasises that the children should be provided with proper educational facilities and
welfare measures for growing up in a healthy environment.

-CRITICAL APPRECIATION AND IDENTIFICATION OF RESEARCH GAPS IN THE

ARTICLE-

Thomas Paul has delivered an outstanding, extensively researched piece on child labour. He has
eloquently put forth the two tangled ropes of constitutional knot of Prohibition v. Abolition. He
extensively asserts his argument that pragmatism in case of child labour will not help the
millions of children toiling in the unhealthy industrial environment. He put forth that the children
have the first charge of the resources of nation and the burden of responsibility of educating
children should be shifted to the parents but should be positively fulfilled by the government. He
advocated BR Ambedkar’s assertion that, “the rightful place of a child below 14 years is in
schools and playgrounds and not in dingy factories and workshop”. He sides with the broader
interpretation of the word “hazardous” and advocates that the intention of the founding fathers
was indeed the mental and physical hazardous nature of employment. He substantiates his prime
argument by providing that child labour and education cannot go hand in hand as the children
cannot be at two places at the same time. He asserts the need of formal education and a law no
short of abolition of child labour. He provides that the state cannot abdicate its responsibility of
imparting meaningful education to these downtrodden children.
The author argues that the fear of non-implementation of the abolition law cannot be a
justification for not making a law altogether. He argues that education is an integral part of right
to life and is essential to bring forth the dignity of man. He said that having a law which
14
(1993) 4 SCC 1.
abolishes child labour will help in bringing down the number of child labour and the
enforcement of it should be rather improved instead of giving up altogether. He asserts that half-
baked measures will do no good to the problem of child labour succumbing our territory and
emphasises on the need of a proper correlation between what is intended to be done and what is
actually being done.
Being written and presented in 2008, the article takes a holistic approach of statistics,
constitutional intention and judicial mindset to argue for and against the Prohibition v. Abolition
argument. He doesn’t restrict his approach to national position but also mentions the
international scenario through statistics and brief mention of UN conventions on child protection.
The author doesn’t simply put forth legal jargon in front of the reader but makes it his duty and
rightfully fulfils so, to provide the in depth understanding of this atrocity plaguing the world and
especially India and highlights the importance of intention and approach towards this issue and
rightfully criticises the present approach of government of earning while learning which seems to
be informal and a rather casual approach. He not only focuses on legislative arguments but also
delves into the intention of government and its vested interest in keeping the masses uneducated
under the argumentative shield of “economic necessity” and current “economic situation of the
country”. The author not only elucidates the problems, reasons and intentions associated with
child labour, but also rightfully and unbiasedly puts forth his opinion and goes on to suggest
certain remarkable changes that can be made for child labour to be abolished rather than
regulated. He predominantly focuses on two remedies, the first being a legislative approach
which abolishes child labour and to complement this abolition, education should be made
mandatory for children and effective measures should be taken to increase enrolment of children
in schools.
This article was written approximately thirteen years ago from today and hence it is quite
obvious that the gap of time makes this article a bit outdated. Therefore, the article misses out
certain recent changes that have been made in the advent of child labour. The structured breaking
down of the issue by the author is indubitably appreciated and no major research gaps which
would hinder the argumentation or claims made hereunder could be detected. However, it can be
provided that the author highlights the more descriptive part of the issue of child labour and his
own analysis/opinion could be seen only in the fewer pages in the thirty-five pages long article.
Even though the argumentation presented was flawless, the author failed to present the public
opinion which includes the general public, NGOs and other social workers working towards the
cause in question. This according to me, would have presented a clearer and a more realistic
scenario of child labour. Even though recommends a correlation in the intention and the deed, he
fails to present literature on how the same can be executed and practically applied in the Indian
legal dogma.

-A CONTEMPORARY OPINION AND POSITION OF CHILD LABOUR-

It is disheartening to observe that thirteen years after this article was written, the position of child
labour has not budged but has only gotten worse. According to the census of 2011, India has a
total of 10.1 million child labourers out of which 5.6 million are boys and 4.5 million are girls. 15
At a global level, a total of 152 million children are the victims of child labour and exploitation. 16
The causes for this horrific development also remain the same ranging from “economic
necessity” to “economic self-interest”. The children and the parents are not made aware of the
importance of education and children are perceived as an additional source of income in the
indignant families. These children are not only used as a source of cheap labour but are also
forced into child pornography, sexual exploitation and alike harassment methods. This atrocity is
a result of over-population, lack of job opportunities for adults and the divide between rich and
poor which seems to widen with every passing decade.17
In India, an amendment to the Child Labour (Prohibition and Regulation) Act, 1986 was
introduced in 201618 wherein the Act was renamed as Child and Adolescent (Prohibition and
Regulation) Act, 1986 and banned employment of children below the age of 14 years in all
occupations and processes. It made, however, an exception of family enterprises and an artist
working in an audio-visual entertainment industry and provides that these categories can only
work after school hours or during holidays. 19 The Act, though a progress in the realm of fight
against child labour, is still often criticised for reducing the schedule of hazardous industries to
mere 3 and excludes agricultural and household work altogether. The working hours after school
as mentioned in the Act continue to be ambiguous and uncertain creating a legal vacuum and
15
Child Labour and Exploitation, UNICEF (Sep. 15, 2021, 8:30 PM),
https://www.unicef.org/india/what-we-do/child-labour-exploitation.
16
Id. at 14.
17
Child Labour in India, INTERNATIONAL LABOUR ORGANISATION, https://www.ilo.org/wcmsp5/groups/public/---
asia/---ro-bangkok/---sro-new_delhi/documents/publication/wcms_557089.pdf.
18
Child Labour (Prohibition and Regulation) Amendment Act, 2016, No. 35, Acts of Parliament, 2016 (India).
19
Child Labour (Prohibition and Regulation) Amendment Act, 2016, § 5, No. 35, Acts of Parliament, 2016 (India).
therefore, a scope for misuse. There are certain other enactments which protect a child’s interest
such as Juvenile Justice Act, 2015, The Right to Education Act, 2009. In 2017, the government
introduced an electronic Platform for Effective Enforcement for No Child Labour (PENCIL)
Portal. This has been launched for a better and effective implementation of Child Labour Act and
National Child Labour Project Scheme.20 India has also ratified ILO conventions no. 138 and 182
which provides for minimum age of entry to employment and worst of child labour respectively.
This is definitely a step forward for achieving the goal of absolute eradication of child labour. 21
The Apex Court has also time and again released guidelines for protection of children and
pushed the government to work towards education and a creation of healthy environment for the
children who have been entrapped in the shackles of poverty and vicious circle of “providing for
their family”.22
The tragedy of COVID-19 has hit poor families in the worst and hardest stroke possible. It has
pushed families on the verge of poverty to below poverty line and has forced students out of
schools and pushed them into unhealthy work environments. A report by UNICEF predicted that
if the projections of poverty increase due to pandemic then another nine million children will be
pushed into child labour by 2022.23 The already bad situation has taken another intense and
worse turn which not only causes a global health trigger but also crushes the dreams of millions
of those children who wanted to study but economic hardships had different plans whatsoever.
Closing of schools has aggravated the situation and many children are being forced to work to
contribute to their family income and has made them more susceptible to exploitation.24
In my opinion, India has the asset of a younger population with unchartered potential. The
leaders can mould the youth into a brighter future with better outreach and better understanding
of the world. Even though the steps are being taken in theory, the practical implementation of the
same is still a high bird we are trying to capture. UN Convention on the Right of Child has
preached that to understand the matters affecting the children, they should be allowed to voice
their views. Teachers, social workers, parents, NGOs can be frontline supporters to protect

20
Child Labour and Forced Labour in India, DRISHTIIAS (SPE. 14, 2021, 6:00 PM),
https://www.drishtiias.com/daily-updates/daily-news-analysis/child-labour-and-forced-labour-in-india.
21
Id. at 19.
22
MC Mehta v. State of Tamil Nadu, (1996) 6 SCC 756.
23
Child Labour swells for first time in two decades: UN, INDIA TODAY (Sep 12, 2021, 8:00 PM),
https://www.indiatoday.in/world/story/child-labour-united-nations-1813013-2021-06-10.
24
Navpreet Kaur, Roger W Byard, Prevalence and potential consequences of Child Labour in India and the
possible impact of COVID-19- a contemporary overview, 61(3) MSL 208 (2021).
children and for this some broader policy changes are a must. Measures which strengthen
families to choose education over exploitation such as increasing minimum wages and
incentivising the process of school enrolment can be taken and initiated to create a better and
flourishing environment for the children. India along with ILO aims at reversing the situation by
announcing 2021 as the International Year for the Elimination of Child Labour. 25 One can only
hope that the situation gets better, flourishing and productive for the children.

25
2021: International Year for the Elimination of Child Labour, INTERNATIONAL LABOUR ORGANISATION,
https://www.ilo.org/global/about-the-ilo/newsroom/news/WCMS_766351/lang--en/index.htm.