International Environmental

Law Research Centre

EVOLUTION OF THE LAW ON CHILD

LABOR IN INDIA
Usha Ramanathan

Published in Hugh D. Hindman ed., The World of Child Labor – An Historical and Regional Survey
(Armonk, NY: ME Sharpe, 2009), p. 783.

This paper can be downloaded in PDF format from IELRC’s website at

http://www.ielrc.org/content/a0905.pdf

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TABLE OF CONTENTS

EARLY CHILD LABOR LEGISLATION 1

1938 TO 1986 1

1986 FORWARD 2

THE ROLE OF PUBLIC INTEREST LITIGATION 3

CONCLUSION 4

NOTES 5
 EARLY CHILD LABOR LEGISLATION
Acknowledgment of child labor as a distinct constituent of the workforce has been on India’s statute book since at
least 1881. The Factories Act of 1881 set the minimum age of employment at seven years, with a maximum of nine
hours of work per day. The act also outlawed the “double employment” of child workers in two factories on the
same day. In 1891 the Factories Act was amended, increasing the minimum age for employment in a factory to
nine years. In 1911, the act was again amended to prohibit the employment of children in certain dangerous
processes. The device of a “certificate of fitness” was introduced. This has sur-vived to the present, where a
certifying surgeon is entrusted with assessing whether a “young person has completed his 14th year, that he has
attained the prescribed physical standards and he is fit for such work.”1

In 1922, it was ILO Convention 5 that prompt-ed raising the minimum age in the Factories Act to fifteen years and
restricting working hours for child workers to six hours with a half-hour break after four and a half hours. In 1901,
the Mines Act prohibited the employment of a child under twelve years in any mine where the conditions were
dan-gerous to their health and safety. Employment of children was restricted to open-cast mines with a depth of
less than twenty feet.

Reporting in 1929, the Royal Commission on Labour, under the chairmanship of John Henry Whitley, had a
significant impact on the recogni-tion and legislative treatment of child labor. It reported widespread prevalence
of child labor in a range of industries including carpet, bidi, textile, match, and plantations. A series of laws
followed. The Indian Ports Act of 1931 set twelve years as the minimum age for handling goods in ports. The Tea
Districts Emigrant Labour Act of 1932 provided that no child below sixteen years be employed, or allowed to
migrate, unless accompanied by parents. The Factories Act of 1934 prohibited chil-dren below twelve years from
being employed in factories and restricted work to five hours a day for children between twelve and fifteen. The
Mines Act, in 1935, raised the minimum age to fifteen years and required a certificate of fitness for chil-dren
between fifteen and seventeen years.

The Children (Pledging of Labour) Act, passed into law in 1933, is the first acknowledgment of the problem of
child bondage. Enacted because “it is expedient to prohibit the making of agree-ments to pledge the labour of
children, and the employment of children whose labour has been pledged,”2 the act defines a child as a person
under the age of fifteen. While declaring that an agree-ment to pledge the labor of a child shall be void, it prescribes
punishment for parents or guardians who make an agreement to pledge the labor of a child and for any person who
makes such an agree-ment with the parent or guardian. Punishment may also attach to one who knowingly employs
a child bound by such an agreement. This act of 1933 survives, virtually unchanged, leaving even the minuscule
penalties of Rs. 50 to Rs. 200 for the various breaches unamended.

1938 TO 1986
In 1938, the Employment of Children Act was the first enactment squarely addressing the issue of child labor. This
followed from the twenty-third session of the International Labor Conference, held in 1937, which adopted a
special article ex-clusively on India, recommending that children below thirteen years be prohibited from work in
certain categories of employment. The 1938 act set the minimum age of employment in certain industries at fifteen
and in the transport of goods on docks and wharves at fourteen.

In 1950, the Constitution of India was pro-mulgated. Article 24 reads, “No child below the age of 14 years shall
be employed to work in any factory or mine or engaged in any other hazardous employment.” This is considered
a Fundamental Right, guaranteed in part 3 of the constitution. Part 4 sets out nonjusticiable Directive Principles of
State Policy. These include directives that “the tender age of child are not abused and that citizens are not forced
by economic necessity to enter avo-cations unsuited to their age and strength”; “that children are given opportunities
and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and material abandonment”; and that the state shall
endeavor to provide “free and compul-sory education for all children until they complete the age of 14 years”
within ten years. In 1993, many years after the ten-year period had elapsed, the supreme court, in a landmark
decision, declared free education to age fourteen to be a Fundamental Right.3 In 2002, the constitution was
amended to reflect the supreme court’s judicial declaration. Article 21-A reads, “Right to Education. The state

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shall provide free and compulsory education to all children of the age of 6-14 years in such man-ner as the state
may, by law, determine.” This was accompanied by the inclusion of Article 51-A(k), which makes it “the duty of
every citizen of India . .. (k) who is a parent or guardian to provide op-portunities for education to his child or, as
the case may be, ward of the age of 6 and 14 years.”

Despite the existence of the Employment of Child Act of 1938, the Labour Investigation Com-mittee (1944-
1946), also known as the Rege Com-mittee after its chairperson, found that child labor was extensive in bidi
making, carpet weaving, glass, and other small-scale industries. There were references particularly to the match
industry in South India, the cement industry in Rajasthan, the spinning industry in Cochin, and carpet weaving in
Kashmir. The committee found children in large numbers on plantations, “mainly due to the fact that recruitment
is on a family basis.” In the case of tea, the committee estimated, “children form about 15% of the total number of
workers in As-sam; 20% in Bengal and about 10% in South India. In the case of coffee and rubber, their proportion
is 10% and 4% respectively for India as a whole.” In 1969, the National Commission of Labour, chaired by Justice
PB. Gajendragadkar, observed that child labor was “noticed mostly in agriculture, planta-tions and shops.”4

In the meantime, the Factories Act of 1948 prohibited a child under fourteen from working in a factory and
required that a child between fourteen and fifteen years be given a certificate of fitness before being employed.
The Plantations Labour Act of 1951 prohibited the employment of children below twelve, and adolescents between
the ages of twelve and eighteen were required to obtain a certificate of fitness. Both laws prohibited night work for
children. The Mines Act of 1952, and especially since 1984, has categorically rejected the employment of persons
below the age of eighteen years, with the exception of apprentices under the Apprentices Act of 1961, or other
trainees un-der proper supervision who may be as young as sixteen years. The Merchant Shipping Act of 1958
prohibits employment of children under fourteen. The Motor Transport Workers Act of 1961 prohib-its employment
of children below fifteen “in any capacity in any motor transport undertaking.” The Apprentices Act of 1961
disqualifies a person less than fourteen years from being engaged as an apprentice.

The tobacco industry, where child labor has been rampant and the handling and inhalation of tobacco have been
recognized as hazardous, was drawn into the law in 1966, in the Beedi and Cigar Workers (Conditions of
Employment) Act. The act prohibits the employment of children under fourteen in any industrial premises, and
“young persons” between fourteen and eighteen years were not to be engaged in work except between 6 A.M. and
7 P.M. A significant exception placed “self-employed persons in private dwelling houses” outside the purview of
the act. This provision expressly allowed the “assistance of the members of his family living with him in such
dwelling house and dependent on him.” This provision, along with the practice of subcontracting to “out-workers”
who are paid piece rates for the finished product, has kept a space open for children to be engaged in bidi manufacture.

The Trade Unions Act of 1926 restricts the right of membership to a trade union to persons who have attained the
age of fifteen, and it disqualifies a member from becoming an officer of a union if they have not reached the age of
eighteen. In the 1990s, these provisions were challenged, unsuccessfully, in the Delhi High Court by Butterflies,
a nongovernmental organization working among street and working children.

The Bonded Labour System (Abolition) Act of 1976 was a response to a customary system of usury under which
a debtor or his descendants or dependents have to work for little or no wages in order to extinguish the debt. The
1976 act abol-ishes the bonded labor system and extinguishes the liability to repay bonded debt. Identification,
release, and rehabilitation of the bonded laborers forms the nucleus of the 1976 act. In the 1980s, the supreme
court also struck at the practice of bonded labor.5

1986 FORWARD
In 1979, the Gurupadaswamy Committee on Child Labour reported on the status of child labor. The committee
noted flagrant violations of the laws, difficulties in regulation, the paucity of prosecution, and the meagerness of
penalties prescribed. It recommended a law that would adopt uniformity in defining the child, with regulation of
hours of work and conditions of work, and identification of areas of employment where child labor would be
prohibited. In 1986, as a prelude to the Child Labour (Prohibition and Regulation) Act, the Sanat Mehta Committee
was set up, which reiterated the recommendations of the Gurupadaswamy Committee.

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 The Child Labor (Prohibition and Regulation) Act (CLPRA) of 1986 prohibits employment of children in a
scheduled list of occupations and a scheduled list of processes. The act carves out an important exception where
children are permit-ted to work in any workshop where the process is carried on by the occupier with the aid of his
family. This exception made for work within the family has been criticized as providing a loophole through which
many law breakers escape. A Child Labour Technical Advisory Committee has been tasked with advising the
central government on additions to the list of prohibited occupations and processes. When enacted in 1986, the
schedule con-centrated on occupations and processes considered hazardous. The list grew from five to thirteen
oc-cupations and from eleven to fifty-seven processes between 1986 and 1999. The act provides for the regulation
of child labor in those occupations and processes where it is not prohibited. The experi-ence with regulation has
not been encouraging, with few prosecutions, fewer convictions, and mild penalties when imposed, which are
unlikely to act as a deterrent.

India ratified the UN Convention on the Rights of the Child in December 1992 with a declaration that it would not
be “practical immediately to prescribe minimum age for admission to each and every area of employment in
India.” This helps to explain why India has not signed and ratified ILO Conventions 138 and 182. The First
Periodic Report to the Committee on the Rights of the Child, however, adverted to an assurance that the prime
minister had given in 1994, in his speech on Inde-pendence Day, that child labor would be abolished in five years
and to a scheme for the Elimination of Child Labour in Hazardous Industries that was intended to be “implemented
intensively in states and regions where employment of child in hazard-ous industries is maximum.”

The 1986 act aimed to achieve uniformity in the definition of child labor, prescribing a uniform, age of fourteen
years in the definition of a child. In pursuing the objective of uniformity, the 1986 act actually reduced the
minimum age for employ-ment in merchant shipping and motor transport from fifteen to fourteen years. Further,
the act repealed the prohibition of child labor on planta-tions. In 2001, the act was amended to restore the minimum
age of fifteen in merchant shipping and motor transport and to restore the prohibition of child labor on plantations.

Extension of the law to what had been con-sidered nonhazardous work was initiated by the National Human
Rights Commission. Reports of exploitation and abuse of child domestic servants in the homes where they are
employed recur with regularity In 1997 and again in 1999, the National Human Rights Commission urged
administrators of the central government, as well as states and union territories, to prohibit government employees
from hiring children below fourteen years as domestic help. Subsequently, the central govern-ment and many state
governments did bring in a change in their rules. Finally, in October 2006, this ban reached beyond government
servants when “domestic workers or servants” were added to the list of prohibited occupations in the CLPRA. A
companion entry addressed another arena where child labor abounds: “Dhabas (roadside eateries), restaurants,
hotels, motels, tea shops, resorts, spas or other recreational centres” are also prohibited venues for employing
child labor since October 2006.

THE ROLE OF PUBLIC INTEREST LITIGATION

Public interest litigation has contributed signifi-cantly to the development of the law concerning child labor. For
example, children under fourteen were found to be among the migrant workers and contract laborers engaged in
construction work for the Asian Games. In 1982, the case was taken to the supreme court by a democratic rights
organization.6 The court found that, at the time, construction was not on the list of prohibited occu-pations for
children. Drawing on the constitutional injunction against children being in hazardous employment, the court
held: “There can be no doubt that notwithstanding the absence of speci-fication of construction industry in the
schedule to Employment of Children Act 1938, no child below 14 years can be employed in construction work and
the Union of India as also every State Government must ensure that this constitutional mandate is not violated in
any part of the coun-try.” In 1983, the court reiterated this position when a case concerning child laborers working
on a hydroelectric project was brought before it.7 The prohibition of child labor in the building and construction
industry was included in the CLPRA when it was enacted in 1986.

Employing children in the manufacture of matches, explosives, and fireworks has been prohibited since 1938. Yet
child labor has been rampant in these industries. Explosions and accidents are common, and it was one such
incident that led the supreme court to require a liability insurance scheme be put in place that would cover the risk
of accidents, providing compensation where risk is not averted.8 This formula was repeated in a public interest

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litigation concerning the tobacco industry.9 Unfortunately, there was a certain regression in the court’s judgment
relating to the match factories in Sivakasi in Tamil Nadu, when it permitted children to be employed in match
factories in the process of packing, considering this to be a nonhazardous aspect of an otherwise hazardous industry.

In 1996, there was a discernible change of mood in the supreme court when confronted with the issue of child
labor. A survey had identified eighteen child laborers in electroplating units in Delhi. The court ordered substantial
fines against employers as penalties for employing the children. This was followed by a “Public Notice to Employ-ers
Employing Child Labour” in the New Delhi edition of a national daily on November 25, 1996, where the names
and addresses of 230 employers, the names of the children they employed, and the amounts of the proposed
penalties were published. The employers included shops, mechanic garages, and tea stalls, which were, at that
time, not on the prohibited list in the 1986 act. Confronted by this judicial approach, the formality of the law had
to give way to the court’s appreciation of what would have been the impact of curtailing the practice of employing
child labor.

On December 10, 1996, a three-judge bench of the supreme court revisited the issue of child labor in Sivakasi
fireworks factories and issued a land-mark decision. The court had before it the report of a committee of advocates
set up to investigate the employment of children in Sivakasi. This com-mittee was constituted following an accident
in a fireworks factory in which thirty-nine people had died. Acknowledging the poverty that character-ized child
labor and the possibility that compulsory education may be the answer to the problem, the court ordered the
offending employer to pay compensation of Rs. 20,000 for each child in their employ. This sum would be deposited
in a Child Labour Rehabilitation-cum-Welfare Fund, interest from which was to be used only for the concerned
child. Further, given the constitutional directive that the state has to help realize the “right to work,” the court
considered whether the state may have an obligation to ensure that when a child is with-drawn from work, an adult
in the child’s family is provided employment. Yet, given the large number of child workers, this could strain the
resources of the state. Instead, where it is not possible to pro-vide alternative employment to an adult, the court
ordered that a “contribution/grant... of Rs.5000 for each child employed in a factory or mine or in any other
hazardous employment” be deposited in the Rehabilitation Fund by the government. The child should then be
withdrawn from employment and assisted by the Rs. 25,000 fund or the Rs. 20,000 and alternative employment.
Assistance was to be halted if the child was not sent to school. As for nonhazardous jobs, the court charged the
inspec-tor under the 1986 act with ensuring that children did not work longer than four to six hours a day and that
they received “education at least for two hours each day.” The “entire cost of education is (to be) borne by the
employer.” This landmark deci-sion had the effect of placing child labor squarely on the state’s agenda.

CONCLUSION
In 2003, the government of India, by resolution, adopted a National Charter for Children that in-cludes a clause
concerning protection of children from economic exploitation and from performing tasks hazardous to their well-
being: “The state shall move towards a total ban of all forms of child labour.” In 2005, India enacted the Commissions
for Protection of Child Rights Act. The preamble to the 2005 act invokes the 2003 charter along with the UN
Convention on the Rights of the Child and the document titled “A World Fit for Children,” which emanated from
the UN General Assembly Special Session on Children held in May 2002. This act came into effect on January 20,
2006, and the commission has been set up and a chairperson appointed. The first chairperson, Shantha Sinha, is
founder of the M.V. Foundation, a child rights organization working for the protection of children and the abolition
of child labor.

Law and policy have begun to veer toward formal abolition of child labor since the “right to education” was declared
a fundamental right by the supreme court in 1993 and the prime minister’s statement in 1994. There has been a spurt
of activity intended to give content to the right to education for all persons between the ages of six and fourteen
years, and a link has been forged in law and policy between child labor and school going. The question of whether
all work done by children should fall within the definition of child labor has been resolved by presuming all children
out of school as labor-force constituents. The practice of employment of child labor has not yet shown any discernible
decline, though. The route to enforcing the ban on all forms of child labor is still being chalked out.

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 NOTES
1. S.69(2)(a), Factories Act, 1948.

2. S.2, Children (Pledging of Labour) Act, 1933.

3. J.R Unnikrishnan v. State of Andhra Pradesh (1993) 1 SCC 645.

4. Report of the National Commission of Labour (1969) at 34.

5. See, for example, Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161.

6. PUDR v. Union of India AIR (1982) Supreme Court 1480.

7. Labourers Working on Salal Hydro Project v. State of Jammu and Kashmir (1983) 2 SCC 181 at 191.

8. M.C. Mehta v. State of Tamil Nadu (1991) 1 SCC 283.

9. Rajangam, Secretary, District Beedi Workers Union v. State of Tamil Nadu (1992) 1 SCC 221.

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