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Chapter- HI

LEGAL & CONSTITUTIONAL PROVISIONS

The Indian legal history on child labour was started in 1880s.

At the beginning, it was initiated by the British government later on our government

followed the path and adjust local requirement with international standards.

The child has been subject o f special laws and legal provisions.

Because of its tender years, weak physique, and inadequately developed mind and

understanding, it needs protection against moral and physical harm and exploitation

by others. In the formative years of its life, the child needs special care to realize its
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full potential for growth and development. There are about 300 central and state

statutes concerning children. These have been enacted with an intention to protect

and help children and achieve the goal of child labour welfare enshrined in our

National Charter.1 A brief histoiy of legal provision relating to child labour in India

and some of its salient features are mentioned below2:

The Factories Act 1881

Minimum age (seven years);

Successive employment (employment in two factories on the same

day) prohibited;

Duration o f employment (working hours not to exceed nine hours a

day and at least four holidays to be given in a month);

Factories employing one hundred or more persons were covered by

this Act.

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T h e F a c to rie s A c t 1 8 8 1 w a s re v is e d in 1 8 9 1 w ith re s p e c t to th e fo llo w in g m a tte rs :

M in im u m a g e (in c re a s e d to n in e y e a rs);

H o u rs o f w o rk (m a x im u m s e v e n y e a rs p e r d a y , w ith p ro h ib itio n o f w o rk a t

n ig h t b e tw e e n 8 p .m . a n d 5 a .m .) .

T h e M in e s A c t 1 9 0 1

T h is A c t p ro h ib ite d e m p lo y m e n t o f c h ild re n u n d e r tw e lv e y e a rs o f a g e .

T h e F a c to rie s A c t 1 9 1 1

T h is A c t p ro v id e s :

W o rk b e tw e e n 7 p .m . a n d 5 .3 0 a .m , p r o h ib ite d ;

W o rk in c e rta in d a n g e ro u s p ro c e s s e s p ro h ib ite d ;

C e rtific a te o f a g e a n d fitn e s s re q u ire d .

T h e F a c to ry (A m e n d m e n t! A c t 1 9 2 2

T o im p le m e n t th e IL O C o n v e n tio n (N o . 5 ) 1 9 1 9 , th e a m e n d m e n t p ro v id e d fo r

c h a n g e s su c h as:

M in im u m a g e (fifte e n y e a rs in g e n e ra l);

W o rk in g h o u rs (m a x im u m s ix h o u rs, a n d a ls o a n in te rv a l o f h a lf a n h o u r if

c h ild re n a re e m p lo y e d fo r m o re th a n fiv e -a n d -a -h a lf h o u rs);

P ro h ib itio n o f e m p lo y m e n t o f c h ild re n b e lo w e ig h te e n a n d w o m e n in c e rta in

p ro c e sse s;

P ro v is io n fo r m e d ic a l c e rtific a te a n d a ls o c e rtific a te o f re -e x a m in a tio n fo r

c o n tin u in g .

T h e In d ia n M in e s A c t 1 9 2 3

T h is A c t ra is e d th e m in im u m a g e fo r e m p lo y m e n t fro m tw e lv e to th irte e n y e a rs .

8 5
T h e F a c to rie s (A m e n d m e n t) A c t 1 9 2 6

T h is A c t im p o s e d c e rta in p e n a ltie s o n th e p a re n ts a n d g u a rd ia n s fo r a llo w in g th e ir

c h ild re n to w o rk in tw o s e p a ra te fa c to rie s o n th e s a m e d a y .

T h e In d ia n P o rts (A m e n d m e n t) A c t 1 9 3 1

T h is A c t la id d o w n tw e lv e y e a rs a s th e m in im u m a g e th a t c o u ld b e p re s c rib e d fo r

h a n d lin g g o o d s in p o rts . H ie re p o rt o f th e R o y a l C o m m is s io n o n L a b o u r (1 9 3 1 ) h a d

a n im p a c t o n le g is la tio n p e rta in in g to c h ild la b o u r d u rin g th e p e rio d b e tw e e n 1 9 3 1

a n d 1 9 4 9 .

T h e T e a D is tric ts . (E m ig ra tio n L a b o u r) A c t 1 9 3 2

T h is w a s p a s se d to c h e c k m ig ra tio n o f la b o u re rs to d is tric ts in A s s a m . I t p ro v id e d

th a t n o u n d e r-a g e c h ild is e m p lo y e d o r a llo w e d to m ig ra te u n le s s th e c h ild w a s

a c c o m p a n ie d b y h is o r h e r p a re n ts o r a d u lts o n w h o m th e c h ild w a s d e p e n d e n t.

C h ild re n (P le d g in g o f L a b o u r ) A c t 1 9 3 3

T h is A c t p ro h ib ite d p le d g in g o f c h ild re n , i.e , ta k in g o f a d v a n c e s b y p a re n ts a n d

g u a rd ia n s in re tu rn fo r b o n d s , p le d g in g th e la b o u r o f th e ir c h ild re n a s y s te m a k in

to th e b o n d e d la b o u r s y s te m .

T h e F a c to rie s (A m e n d m e n t) A c t 1 9 3 4

T h is A c t h a d e la b o ra te p ro v is io n s fo r re g u la tin g th e e m p lo y m e n t o f c h ild re n o f

v a r io u s a g e g r o u p s in th e f a c to rie s , s u c h a s :

E m p lo y m e n t o f c h ild re n b e tw e e n tw e lv e a n d fifte e n y e a rs w e re g e n e ra lly

p ro h ib ite d in c e rta in a re a s ;

E m p lo y m e n t o f c h ild re n u n d e r tw e lv e a n d fifte e n y e a rs r e s tric te d to fiv e

h o u rs a d a y in o th e r a re a s ;

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For employment of children between fifteen to seventeen years, certain

restrictions were imposed.

The Mines (Amendment) Act 1935

This Amendment Act introduced divisions o f children according to age groups and

the position, which emerged, was as follows:

Employment of children less than fifteen years in mines was prohibited.

Underground employment was permitted only on production o f certificate of

physical fitness granted by a qualified medical practitioner for persons

between fifteen and seventeen years.

Working time restricted to a maximum of ten hours a day and fifty-four

hours a week for work above the ground and nine hours a day for work

underground.

The Employment of Children Act 1938

This Act was passed to implement the Convention adopted by the twenty-third

session of EX) (1937), which inserted a special article on India:

Children under the age o f thirteen years shall not be employed or work in the

transport of passengers, or goods, or mails, by rail, or in handling o f goods at

docks, quays, or wharves, but excluding transport by hand. Children under

the age o f fifteen years shall not be employed or work...in occupations to

which this Article applies which are scheduled as dangerous or unhealthy by

the competent authority.

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This Act:

Prohibited employment of children under fifteen years in occupations

connected with transportation of goods, passengers, and mails, or in the

railways;

Raised the minimum age o f handling goods on docks from twelve to fourteen

years;

Provided for the requirement of a certificate o f age.

The Factories Act 1948

This Act raised the minimum age to fourteen years for employment in

establishments governed by the Act.

Employment of Children (Amendment) Act 1949

This Act raised the minimum age to fourteen years for employment in

establishments governed by the Act.

Employment of Children (Amendment) Act 1951

As a result of the ILO Convention relating to night work o f young persons this

Act prohibited the employment o f children between fifteen and seventeen years

at night in the railways and ports and also provided for requirement of

maintaining a register for children under seventeen years.

The Plantations Labour Act 1951

This Act provided the employment o f children under twelve years in plantations.

The Mines Act 1952

This Act prohibited the employment of children less than fifteen years in mines.

The Act stipulates two conditions for underground work:

Requirement to have completed sixteen years o f age; and

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Requirement to obtain a certificate of physical fitness from a surgeon.

The Factories (Amendment) Act 1954

This included prohibition of employment of persons under seventeen years at

night. (Night was defined as a period of twelve consecutive hours, which

included hours between 10 p.m. and 7 a.m.).

The Merchant Shipping Act 1958

This prohibits children under fifteen to be engaged to work in any capacity in

any ship, except in certain specified cases.

The Motor Transport Workers Act 1961

This Act prohibits the employment o f children less than fifteen years in any

motor transport undertaking.

The Apprentices Act 1961

This prohibits the apprenticeship/training o f a person less than fourteen years.

The Beedi and Cigar Workers (Conditions o f Employment) Act 1966

This Act prohibits:

The employment of children under fourteen years in any industrial

premises manufacturing beedis or cigars;

Persons between fourteen and eighteen years from working at night

between 7 p.m. and 6 a.m.

Employment of Children (Amendment) Act 1978

This Act prohibited employment of a child below fifteen years in occupations in

railway premises such as cinder picking or clearing of ash pit or building

operations, in catering establishments and in any other work which is carried on

in close proximity to or between the railway lines.

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The Child Labour (Prohibition and Regulation! Act 1986

This is the most comprehensive Act relating to the issue of child labour in India,

which was enacted in 1986. The objectives of the Act are:

Banning the employment o f children, i.e. those who have not completed

their fourteenth year, in specified occupations and processes;

Laying down procedures to decide modifications to the schedule of

banned occupations or processes;

Regulating the conditions o f work of children in employment where they

are not prohibited from working.

The preamble to the Act states that it is an Act to prohibit the

employment of children in certain employment and to regulate the conditions of

work o f children in certain other employment. The Act prohibits the employment of

any person who has not completed his fourteenth years of age in occupations and

processes set forth in Part A and Part B of the Schedule of the Act (See annexure).

The Act thus classifies all establishments in two categories:

Those in which employment of child labour is prohibited, and

Those in which the working conditions of child labour shall be regulated.

Thus according to the Act, no child (below 14 years of age)

can be employed in any occupation connected with transport o f passengers,

railways, cinder picking, beedi making, carpet weaving, cement manufacturing,

manufacture o f matches, cloth printing, mica cutting, soap manufacturing,

explosives and fire works, building and construction industry, tanning etc. Recently

from 10 October, 2006 the Ministry o f Labour added the following occupations to

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the list of hazardous occupations: domestic servants, workers in hotels, restaurants,

dhabas, motels, tea shops, resorts spas or other recreational centres. Till date it is the

most comprehensive act in relation to child labour in India.

But in all these above-mentioned Acts child labour is

prohibited only in certain selected formal sectors and is not applied in any family

workshop. It is often alleged that the present laws are responsible for

institutionalising child labour in India. Since these acts deals with only listed forma!

sectors hence the number o f convictions are very nominal as the acts are full of

loopholes.

Constitutional Provisions

The farmers o f the Indian Constitution consciously incorporate

relevant provisions in the Constitution to protect child labour and to secure

compulsory universal primary education. Indias judiciary right up to the apex level

has demonstrated profoundly empathetic responses against the practice o f child

labour. Labour commissions and committees have gone in to the problems of child

labour and made extensive recommendations. The constitutional provisions are as

follows

Article 21(a): - The State shall provide free and compulsory education to

all children of the age of six to fourteen years.

Article 23: - Traffic in human beings and beggar and other similar forms

of forced labour are prohibited and any contravention o f this provision shall be an

offence punishable in accordance with law.

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Article 24: - Prohibition o f employment o f children in factories etc. It held
that no child bellow the age of fourteen years shall be employed in works in any
factory or mine or engaged in any other hazardous employment.
Article 39 (e): - The state shall, in particular, direct its policy forwards
securing, that the health and strength o f workers, men and women, and the tender
age of children are not abused and that citizens are not forced by economic necessity
to enter avocations unsuited to their age and strength.
Article 39 (f): - Children are given opportunities and facilities to develop
in a healthy manner and in condition of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and material
abandonment.
Article 51(k): - A parent or guardian has a fundamental duty to provide
opportunities for education to his child or, as the case may be, ward between the age
of six to fourteen years.
International Provisions
Besides national provisions, today we have several international
treaties (or conventions), banning child labour, like:
1919: The first D L O child labour convention, the Minimum Age (Industry)
Convention (No. 5), adopted within months of the creation of the
International Labour Organization, prohibited the work o f children under
the age of 1 4 in industrial establishments.
1930: The ILO Forced Labour Convention (No. 29) protected children
from forced or compulsory labour, such as victims o f trafficking, children
in bondage, and those exploited by prostitution and pornography.

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1966: The International Covenant on Civil and Political Rights, re

emphasizing issues of slavery and forced or compulsory labour, was

adopted by the General Assembly, along with the International Covenant

on Economic, Social and Cultural Rights calling for the protection of

young people from economic exploitation and work hazardous to their

development.

1973: The key instrument of the ILO was adopted: Convention No. 138 on

the minimum age for admission to employment (15 or the age reached on

completion of compulsory schooling).

1989: The UN adopted the Convention on the Rights of the Child,

specifying the right o f the child to be protected from economic exploitation

and hazardous work, and the refraining o f States from recruiting any

person under 15 into the armed forces.

1999: ILO unanimously adopted the Convention concerning the

Prohibition and Immediate Action for the Elimination of the Worst Forms

o f Child Labour Convention (No. 182). It called for States to prevent the

most damaging child exploitation practices or the worst forms that

currently exist.

Implementation of Laws

It is seen that, in India, there are enough legal and

constitutional provisions aid it ratifies a number o f international Conventions

regarding protecting the rights of children. But in practice their rights are often

violated and millions o f children passes their day-to-day life as child labourer. The

need of the hour is progressive attitudes on the part o f the common people,

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employer, and government and not some theoretical legal and constitutional

provisions.

The main thrust of the Indian laws concerning child labour

has been on the minimum age of employment, medical examination of children and

prohibition of night work. In each of these directions, the standards stipulated are

below the international levels as laid down by the ILO. Enforcement of the law is

rendered difficult by a combination of factors: economic backwardness forcing the

family to supplement its income by letting the children work; lack of educational

facilities; the unorganised nature of a good part of economy; and the smallness of
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most manufacturing units. A major deficiency in the protective legislation is the fact

that there is no law fixing a minimum age for employment in agriculture, though it is

the main occupation in the country and the bulk of child labour, 78.7% of it, is

engaged in this occupation. A minimum age has been fixed however at 12 years for

plantations, 14 years in factories and 12-14 years in the case of non-industrial

employment. But this leaves the small sector unregulated: for example, the Factories

Act itself applies only to factories employing workers above a minimum number. As

for legal safeguards for the health of child workers, the law require medical

examination of children up to 18 years of age and that too for industrial employment

only. But no standards are laid down for medical fitness. And there is no law in

respect of medical examination of children working in the non-industrial sector.3

The two tables (18-19) clearly show the incidents of

prosecutions and convictions at the national and state level, which is very negligible.

In fact in the study area of Nalbari district not a single case of prosecution or

conviction is made till date (see table 20). In the next paragraphs, keeping the above

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mentioned laws and constitutional provisions in view, an analysis is made regarding:

minimum age, hours of work, prohibition of dangerous work, medical check up of

fitness, prohibition of night work, prohibition of apprenticeship and bondage in the

study area of Nalbari district.

Out of two hundred child labourers only 35 are girls. Girls are

engaged only in chocolate factory and brick kilns; they are not found in other

economic activities; here boys are dominant. Majority of the child labourer are from

11 to 14 years age. But majority of the girl child labourer are from 5 10 years age

group. Some children are veiy young, who cannot respond properly to the researcher

during investigation. It shows that employer openly violates the legal standards

regarding employment of children.

Table (15): Age of child labourer in Nalbari district

Age Sex Total no. of

Male Female child labourer

510 43 19 62

1114 122 16 138

Total 165 35 200

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Seriesl

The minimum working hour 4 5 is for vendors and some

self-employed children. 19.3% of total children work for up to 8 hours per day. But

29.3% work for more than 12 hours per day, here hotel and garage boy are the worst

sufferer. In fact for hotel boy there is no rest during and after lunch. The following

table shows that the maximum working hour is often violated and children are

forced to work for a long period.

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Table (16): Working hours of children in Nalbari district

Hours Economic Activity Total

(Per day)

Brick kiln Hotel Transport Garage Shop

45 8 0 7 0 4 19

58 23 0 4 0 4 31

8 12 19 28 8 14 26 95

More than 12 0 22 6 11 16 55

Total 50 50 25 25 50 200

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Table 17: The Working Hours and Conditions for young persons and children

(under some major Acts) in India

Act Min. Certifi Max. Max. Rest Spread Over Night


Age cate Weekly Daily hrs. Interval over lim e W ork
brs.

Factories Act, 14 Necessary Not 5hrs. one 30 minutes 5 hrs. Not Not
1948 prescri shift allow allowed
bed ed

Mines Act, 15 Necessary Not 5hrs. one 30 minutes 5 hrs. Not Not
1952 prescri shift allowed allowed
bed (6p.m. to
6a.m.)

Plantation 12 Necessary 40hrs. 6 hrs. 30 minutes 5 hrs. Not Not


Labour Act, allowed allowed
1951

Motor 15 Necessary 40 hrs. 6 hrs. 30 minutes 9 hrs. Not Not


Transport allowed allowed
Children Act

Employment 15 Necessary 40 hrs. Not Not Not Not Not


of Children prescrib prescribed presc allow allowed
Act ed ribed ed (lOp.m.to
7a.m.)
Beedi & 14 Not 40 hrs. Not Not 9 hrs. Not Not
Cigar Necessary prescrib prescribed allow allowed
Workers ed ed (7p.m. to
(condition of 6a.m.)
employment)
Act

Merchant 18 Necessary 40 hrs. Not Not 9 hrs. Not Not


Shipping Act prescrib prescribed allow allowed
ed ed

Source: V.Venkat Karina, Law and Child Labour in India, 2003, p-71

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As the above table shows there is no uniformity in India

regarding working hours and minimum age of working which often leads to conflict

among the laws itself. Field investigation and discussion with working children

reveals that in majority of cases prescribed norms of laws are violated regarding:

minimum hours of work, night work, rest interval, over time, minimum age for work

and issuing o f age and medical fitness certificate.

Regarding dangerous work, it is found that some o f the child

labourers are engaging in dangerous activities like: work as handyman in running

vehicles, hawking over street and railways, working in garages with heavy heat,

weight and electricity, and work in brick kiln fields. Although in those areas child

labour is prohibited, but in the study area o f Nalbari district children are found as

labourer.

Another point is the issue of medical certificate of fitness, which

has to be carried by every child labourer, but in practice it is found that not a single

children have that certificate and both employer and children are unaware about this

provision. They even held that the government official never enquired about the

matter.

Working at night is another serious matter, which is violated in

some sectors. For example, the handymen have to go for special trips at night for

which they got extra amount. The children who work in hotels and dhaba have to

work till 9 to 10 o clock and by this way they got very little time to rest, as they have

to resume their work in the early morning.

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Regarding apprenticeship only two cases are found where two

children are learning in scooter garage, however at the same time they got wage

although it is very little compared to other children working in garages.

Lastly, the incidents o f bondage, which is not found anywhere in

the study area of Nalbabi district. However the study feels that there might be some

children who are working because of their parents failure to repay loans, which

were token in the past but no children, their parents or employer acknowledged it.

Table 18: Prosecutions and Convictions under Child Labour (Prohibition and

Regulation) Act during 1992-2002

Year No. of No. of No. of No. of

Inspections Violations Prosecutions Convictions

1992-93 28,183 1,890 1,890 163

1993-94 16,904 1308 1826 265

1994-95 63,728 4961 2496 1532

1995-96 23,349 543 3146 18

1996-97 35,886 458 1868 18

1997-98 8,42,497 1749 2329 743

1998-99 222856 11263 6469 4125

1999-2000 242269 7598 3972 1333

2000-01 10823 31 40 5

2001-02 14162 25 59 99

Source: W G N LI (2003), Child Labour: Challenge and Response, Noida (India)

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Table 19: State-wise Statistics (Provisional) Child Labour (Prohibition &

Regulation) Act 1986 for the year: 2003

States/UTs Prosecution Convictions Acquittals

Andhra Pradesh 563 0 0

Andaman & Nic 0 0 0

Arunachal Pradesh 0 0 0

Assam 0 0 0

Bihar 354 0 0

Chandigarh 0 0 0

Dadra & Nagar 0 0 0

Daman & Diu 0 0 0

Delhi 36 0 0

Goa 0 4 3

Gujarat 7 3 5

Haryana 11 23 0

Himachal Pradesh 3 3 0

Karnataka 300 56 0

Kerala 1 1 0

Lakshadwep 0 0 0

Madhya Pradesh 35 17 1681

Maharashtra 0 0 0

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Manipur 0 0 0

Meghalaya 0 0 0

Mizoram 0 0 0

Nagaland 0 0 0

Orissa 1 0 20

Pondicherry 0 0 0

Punjab 0 0 0

Rajasthan 55 57 92

Sikkim 0 0 0

Tamil Nadu 808 127 48

Tripura 0 0 0

Uttar Pradesh 321 23 171

Uttaranchal 3 4 13

W. Bengal 6 0 17

Total 2504 318 2050

Source: Rajya Sabha Unstarred Question 313, Parliament o f India,

Winter Session 2003.

Both the above-mentioned tables (18 and 19) show that in India

the number of convictions and prosecutions are very low and in some states it is nil.

In Assam, we have exclusive acts like Assam Shops and Establishments Act, 1948;

Assam Children Act, 1970; and Assam Shops and Establishments Act and Rules,

1971 which bans employment of children below the age of fourteen in any

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establishments except as apprentices. Although domestic servant is banned from

2006, but in Assam not a single case is found where any children is rescued or an

employer is arrested; but all of us know that it is widely practised. As field study

shows in Nalbari district where in a number o f occasions the legal and constitutional

provisions are violated but as par official data none is prosecuted, which means the

Acts are not implemented in true spirit (see table 20).

Table 20: Implementation of Child Labour (Prohibition and Regulation) Act, 1986

in Nalbari District

1997-98 1998-99 1999-2000 2000-2001

No. o f inspections 387 228 185

conducted "

No. of violation

detected ~

No. of prosecutions N il. Nil Nil

launched "

No. of convictions
Nil Nil Nil

No. of acquittals
Nil Nil Nil

Source: Office o f the Labour Officer, Nalbari (Assam), 2001

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Problems regarding enforcement of laws

Although many laws are introduced to make child labour

illegal, however, there are problems within these laws. The laws failing to clearly

distinguish between harmful and non-harmful forms of child labour. Sometime it is

found that some work benefits the children in the form o f financial contribution

which is essential for survival, learning skills, and having self-esteem. Laws are

usually enforced in formal employment. This forces children to work in informal,

unorganised and unregulated work which are not registered and where they are more

vulnerable. Again in India majority of children are found to be working in the

agricultural sector, but this sector is not coverd by child labour laws. Laws which

prevent children from working can be misused by people in authority to harass

children who are working. Lack of social awareness is another big issue for which

these laws are not fully implemented and succeeded. Lack o f adequate staff

resources; existence of establishments where children work are widely scattered; and

non-cooperation by the employers, are some other serious matters for non

implementation of child labour related laws in India.

Jain (2006) 4 supports the following agencies and institutions

for proper enforcement of the Child Labour (Prohibition and Regulation) Act 1986:

The Central Government (Ministry of Labour)

The State Government (Labour Department, Factory Department)

Police authorities

Inspectors

Child Labour Technical Advisory Committee (under Section 5 of the Act)

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Judiciary

Trade unions, Non-Governmental and Voluntary Organisations

Media

Parents

* Society in general

Collective efforts made by the above agencies can contribute to

the progressive and successful elimination of child labour. It is, also the intense

cooperation amongst the above agencies that can synchronise positive results in the

direction of eliminating child labour. Even if the task is stupendous, a process of

cooperative dependence can achieve the target systematically.

Till date the Child Labour (Prohibition & Regulation) Act,

1986 is the most comprehensive weapon to fight against child labour in India. But

when an official tries to enforce the Act of 1986, deficiencies and loopholes in the

act itself make enforcement very difficult. Bajpai (2003)5 suggests two points to be

reviewed in the existing laws like: determining the age of children, as in India many

children do not have birth certificates so the procedure needs to be simplified.

Secondly, there should be provision for special courts for children to resolve the

dispute regarding wages and other employment related issues.

The Human Rights Watch (2006) 6 mentions the following

loopholes and weaknesses in implementing the Child Labour (Prohibition &

Regulation) Act, 1986:

First, t&e act excludes any work done in the family even if the

act prohibits children from doing that work in any other context. This exception

creates an incentive for factory owners to contract with or bond adults for work to be

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done in their homes. The adults then use their own children or bond other children to

help with the work, claiming, if inspected, that the bonded children are their own.

Second, unlike the Bonded Labour System (Abolition) Act,

1976, and the Scheduled Castes and Scheduled Tribes (Prevention o f Atrocities)

Act, 1989, the Child Labour (Prohibition & Regulation) Act, 1986, is not

cognizable, meaning that a police officer may not arrest without a warrant. Instead,

it is incumbent on labour inspectors to bring cases against employers. Because the

act is not cognizable, it is more difficult for inspectors to collect evidence.

Third, the act, which only covers children up to age fourteen,

places the burden on the inspector, not the employer, to prove with a doctor's

certificate that a child is under age. If an inspector believes a child is under fourteen

but the age is disputed, the child must be referred to a registered doctor.

Fourth, a lack of well-trained staff in sufficient numbers also

impedes law enforcement. At both the state and district levels, the staffs devoted to

enforcing the child labour laws are insufficient which makes it virtually impossible

for them to do their jobs thoroughly. Many inspectors are not adequately trained to

enforce the law.

The National Labour Institute has found: Most of the inspections

conducted on child labour law do not result in prosecutions because, during the

inspection, some of the provisions of the Act or the rules are lost sight o f by the

labour enforcement officers. This may be because o f the labour enforcement officers

not being careful, thorough and tactful while carrying out inspections. For

Inspections under the Act to be purposeful and effective, these should always be

surprise inspections. Prosecutions do not result in convictions very often because of

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the failure on the part of Inspectors to gather sufficient and reliable evidence during

the course of the inspections for bringing home the violations o f the Act by the

accused persons.

To Burra (1995)7, there are a number of loopholes in the Child

Labour (Prohibition and Regulation) Act, 1986, which makes it a completely

ineffective instrument for the removal of children in industry. One clear loophole is

that children can continue to work if they are a part of family labour. Hence the Act

has become toothless for factory and labour inspectors as they are hardly equipped

to determine the paternity of children at work. Since people have become aware of

the law, they freely claim parenthood of the children they employ.

Studies in child labour reveal that enforcement o f child labour

legislation faces a number of problems. Broadly, the difficulties fall into the

following categories8:

Enforcement o f social legislations. Social legislations are often difficult to

enforce, as the law enforcers do not understand the spirit o f the law. Neither

the employers of child labour, nor the parents, nor the law enforcers perceive

child labour as an undesirable thing.

Infomalization o f child labour. Due to informalization o f child labour, viz.,

work involving child labour moving out o f the factories and large

establishments into small cottage and home-based units, from out of the

organised sector to the unorganised sector, it has been difficult to enforce the

Act. This requires a large increase in the labour enforcement machineiy.

Besides, no records are maintained of the child workers.

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No successful conviction. W here an inspector m an ages to find children

w orking in an establishm ent, in violation o f the law , the prosecution d o es not

lead to successful conviction.

Y e t w e can say that m aking law s are not enough to prevent

child labour. Though the United N ations has alrea d y created a large num ber o f

international conventions and setting legal standards to prohibit the exploitation o f

child labour, the problem rem ains w idespread. S in ce, law s mean very little i f they

are not properly enforced. N ational strategies to ad dress child labour issues should,

at m inim um , encom pass the fo llo w in g fiv e elem ents:

N ational plan o f action;

E xten sive R esearch ;

A w aren ess;

B ro ad social allian ce; and

Institutes to m onitor enforcem ent.

The struggle again st ch ild labour cannot be w on by legislative

action alone, but at the sam e tim e w e cannot underestim ate its im portance. The

adoption o f legislation sp ecifyin g a m inim um ag e to enter em ploym ent, com pulsory'

primary education, the prohibition o f child labour in hazardous occupations or

activities, w here it is detrimental to the education, health and developm ent o f the

child, must be the backbone o f an y national strategy again st child labour.

A ppropriate legislation can help to m ake u n iversa lly accepted principles, such as

those set out in the Convention on the R igh ts o f the C h ild and relevant ILO

C onventions, a reality throughout the country. It establish es the norm s and standards

to w hich society should aspire; it provid es a fram ew ork fo r national p o licies and

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p ro g ra m m e s c o n c e rn in g c h ild la b o u r; a n d it c re a te s a y a rd s tic k fo r m e a s u rin g

p ro g re s s a n d e v a lu a tin g p e r f o r m a n c e .9

T h e m a in p ro b le m w ith m o s t e x is tin g c h ild la b o u r le g is la tio n

lie s in th e fa c t th a t it is n o t e n fo rc e d in th o s e s e c to rs w h e re it is m o s t n e e d e d i.e .

s m a ll-s c a le , a g ric u ltu re , a n d th e s m a ll w o rk s h o p s a n d u n d e rta k in g s o f th e in fo rm a l

s e c to r. A g a in , a s th e s u b je c t la b o u r fa lls u n d e r th e C o n c u rre n t L is t o f th e

C o n s titu tio n , th e re h a s to b e c o o rd in a tio n b e tw e e n b o th th e C e n tra l a n d S ta te

G o v e rn m e n ts f o r p ro p e r e n fo rc e m e n t a n d e v a lu a tio n o f c h ild la b o u r re la te d is s u e s .

T h e IL O (1 9 9 8 ) 10 h a d lis te d s o m e d iffic u ltie s e n c o u n te re d b y

la b o u r in s p e c to ra te s w h ile d e a lin g w ith th e is s u e o f c h ild la b o u r lik e :

L a c k o f m a te ria l re s o u rc e s in c lu d in g s c a rc e tra n s p o rt;

U n d e rs ta ffin g o f in s p e c tio n o ffic e s ;

O v e rw o rk a n d lo w p a y f o r in s p e c to rs ;

In s p e c to rs p e rc e p tio n o f c h ild la b o u r;

L a c k o f a p p ro p ria te tra in in g o n th e s p e c ia l v u ln e ra b ility o f c h ild re n ,

c h ild la b o u r a n d h a z a rd s to w h ic h c h ild re n a re e x p o s e d ;

P o w e rs lim ite d b y la w a n d la c k o f a p p ro p ria te te c h n iq u e s ;

L a c k o f m o tiv a tio n ;

H o s tile e n v iro n m e n t;

L a c k o f c o o p e ra tio n a n d s u p p o rt fro m o th e r g o v e rn m e n t a g e n c ie s ,

in c lu d in g th e e d u c a tio n s y s te m ;

C la n d e s tin e n a tu re o f c h ild w o rk .

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A s lis te d a b o v e , in In d ia to o , la b o u r in s p e c tio n s e rv ic e s a re

u n d e rs ta ffe d . T h e y o fte n d o n o t h a v e th e re s o u rc e s to re a c h a n d in s p e c t

e s ta b lis h m e n ts o u ts id e th e c itie s . In c a s e o f e n fo rc in g c h ild la b o u r le g is la tio n , th e y

o fte n fa c e d w ith a p a th y a n d h o s tility o f e m p lo y e e a n d th e p a re n ts o f c h ild re n . It

re in fo rc e s th e p o in t th a t th e m o b iliz a tio n o f th e p u b lic ,' in c lu d in g th o s e p a re n ts a n d

th e ir c h ild r e n c o n c e r n e d , is o f p r im a r y im p o rta n c e in th e f ig h t a g a in s t c h ild la b o u r.

S tre n g th e n in g th e e n fo rc e m e n t m e c h a n is m s fo r c h ild la b o u r

la w s s h o u ld th e re fo re b e g iv e n p rio rity . L a b o u r in s p e c to rs n e e d th e fu ll s u p p o rt o f

th e p o litic a l a u th o ritie s in c a rry in g o u t th e ir ta s k s . T h e y re q u ire s p e c ia l tra in in g in

o rd e r to b e a b le to a s s e s s th e c o n d itio n s in w h ic h c h ild re n w o rk , to e x a m in e th e

h a z a rd s to w h ic h th e y a re e x p o s e d a n d to d e a l w ith th o s e s itu a tio n s .

T h e s y s te m s o f d e a lin g w ith c h ild la b o u r c o m p la in ts a re

c o m p lic a te d fo r th e illite ra te p a re n ts a n d c h ild re n , w h ic h re s is t th e m fro m a tte m p tin g

to e x e rc is e th e ir rig h ts . S o , m e a s u re s c o u ld b e ta k e n to im p ro v e e n fo rc e m e n t o f

le g is la tio n b y m a k in g c h ild re n a n d th e ir p a re n ts a w a re o f th e ir rig h ts , a n d m a k in g

le g a l a n d a d m in is tra tiv e p ro c e d u re s m o re a c c e s s ib le a n d s im p le to th e m .

L a b o u r in s p e c to ra te s , e s p e c ia lly in b a c k w a rd a n d re m o te

a re a s , a re o v e rb u rd e n e d w ith m a n y fu n c tio n s b e s id e s th e e n fo rc e m e n t o f c h ild

la b o u r le g is la tio n . A n o th e r p ro b le m is la c k o f tra n s p o rta tio n to re a c h a n d in s p e c t

e s ta b lis h m e n ts o u ts id e th e c itie s , w h ic h m a k e s it v irtu a lly im p o s s ib le fo r th e m to

m o n ito r th e s itu a tio n in ru ra l a re a s w h e re la rg e s t n u m b e rs o f w o rk in g c h ild re n a re

fo u n d . A n o th e r lim ita tio n is lik e n o t h a v in g e a s y a c c e s s to c e rta in w o rk p la c e s a n d

s m a ll e s ta b lis h m e n t w h e re c h ild la b o u r is p a rtic u la rly p re v a le n t ( e .g . fa m ily

e n te rp ris e s a n d th e s m a ll w o rk s h o p s o f th e in fo rm a l s e c to r).

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Proving the age o f the child is another difficult issue.

Employers have been found to produce fake age certificates to prove that the child in

question is over the minimum age, and parents sometimes support such false

statements for fear of losing their children's jobs. On the other hand the procedures

for filing complaints is so lengthy and complicated that they discourage poor and

illiterate families from using them.

Because o f all these obstacles, it is not surprising that labour

inspectors lack motivation. They are poorly paid and subjected to political pressure,

which prevent them from intervening in a particular establishment, or sector, which

may even practices illegal and exploitative activities.

It is in this context that Jain (2006) 11 favours the Inspector to

play a mixed role of an educator, reformer, policeman and prosecutor. It is largely

believed that the art of persuasion rather than coercion should be employed and a

strict imposition of the law may be avoided. This is explained by the fact that labour

laws are essentially social laws and have much to do with human relationships and

behaviour. Therefore, it is essential for the Inspector to be reasonable and follow

certain principles of natural justice in carrying out his functions. That is, he must act

democratically and his actions and decisions should not be based on presumptions

but on good legal evidence. He also has a social role and therefore, must find

opportunities to rehabilitate child labourers whom he has been able to retrieve from

exploitative employers.

Enforcing child labour legislation still remains a major

challenge. In addition, the coverage of legislation is also found to be inadequate in

relation to the kinds o f work that children most often perform. The International

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Conference on Child Labour (1997) discusses in details about legislation and its

enforcement. The Conference recommends the following suggestions:

1. Countries should commit themselves to pursue a national policy designed to

ensure the effective abolition of child labour. International and national laws should

set the principles, objectives and priorities of such policy, and also provide a

conducive environment for the development o f national institutional capacities to

combat child labour.

2. Laws, although indispensable for the fight against child labour, cannot by

themselves solve the problem of child labour. They need to be complemented by

socio-economic policies and programmes which provide for universal access to

quality education and attack the root causes, namely the poverty o f nations,

communities and families.

3. While reaffirming that the ultimate objective is the total and effective abolition of

child labour, national enforcement capacities should in the first stage concentrate on

eliminating the participation of children in work that is most detrimental to them,

namely those activities conducted under hazardous, abusive or slave-like conditions.

4. It is essential to ensure that at the very least, national legislation prohibits the

work of children under 12, in all sectors of activity and in all types o f enterprise or

employment.

5. Girls are particularly vulnerable to various forms o f exploitation and abuse and

therefore require special attention.

6. Inspectors are uniquely placed to assess hazards to working children, to extend

protection to them, and to exert social and legal pressures to eliminate hazardous and

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abusive forms of child labour. The labour inspectorate must find a balance between

its supervisory function and its advisory role.

7. Systems of registering child labour complaints, administrative and court

procedures are sometimes so complicated that they are in some cases virtually

inaccessible to children and their families, thus discouraging enforcement that

begins with complaints from aggrieved parties. The simplification of complaints and

prosecution procedures must comprise an essential part of any successful

enforcement programme.

8. Public awareness raising is a vital tool to create an appropriate political and social

climate against child labour, to promote the need for policy reforms, and to facilitate

the implementation of policies and legislative mandates. Information on

international and national standards on child labour should be made easily accessible

to the public.12

To Jain (2006) 13 there is a myth that legislation prohibiting

child labour is sufficient to resolve the problem but the reality is that it may end up

compounding the problem by legitimising child labour. For instance, the Child

Labour (Prohibition and Regulation) Act, 1986, is in violation of Article 14, 21, 23

and 24 of the Constitution. This legislation removes the protection given by these

Articles to children against employment in all hazardous work and against

exploitation and injustice by not prescribing a minimum age and prohibiting

employment of children only in certain occupations and processes. Furthermore,

having enacted so many Acts little attention has been given towards enforcement. In

the absence of enforcement, the legislative measures are easily flouted. The plethora

o f laws cover only about 8% of the total, as these laws are not applicable in the case

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of agriculture and also tertiary activities such as retail and wholesale trade, etc. it is

seen that there is a total lack of political will to resolve the problem o f child labour.

For example, compulsory primary education is yet to be implemented in its true

spirit and the high dropout rate is yet to be checked.

Judicial response to child labour in India

Supreme Courts judgments on child labour

In the M.C. Metha ra. State o f Tamil Nadu & Others (Dec. 10, 1996) case, the

Supreme Court issued the following important directions regarding child labour:

Payment of compensation of Rs.20, 000 by the offending employer for every

child employed in contravention of the Child Labour (Prohibition and

Regulation) Act, 1986.

Constitution of a Child Labour Rehabilitation and Welfare Fund.

Alternative employment to an adult member of the family in place of the

child withdrawn from the hazardous occupation, or payment of Rs. 5000 for

each child employed in hazardous employment by the appropriate

government (Central or State) to the family of the child withdrawn from

work.

Provision of education in a suitable institution for the child withdrawn from

work in hazardous and prohibited categories of employment. In the non-

hazardous category, the court permitted children to work for 4-6 hours a day

and receive education for two hours a day with a clear direction that the cost

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of such education should be borne by the employer o f the establishment

concerned.

Constitution of a separate cell in the Labour Department o f the appropriate

government to monitor the implementation of these directions.

The judiciary has almost brought a revolution in the life of

child workers in India, It has always endeavoured to expand and develop the law so

as to respond to the hope and aspirations of people who are looking to the judiciary

to give life and content to law. It has virtually played a vital role in the task of

providing political, social and economic justice to the poor child workers in this

country. There are numerous cases where the judiciary has made significant

contribution to the cause of child workers. The court has given a new dimension to

several areas such as locus standi, minimum wages, employment o f children,

payment of minimum wages to children (M.C. Mehta case), protection of their

fundamental rights (Asiad Workers case), employment o f children in hazardous

occupation (Vishal Jeet case) reflect the judicial creativity in the field o f the welfare

of the child labourer. The court has held that at least 60 per cent o f the prescribed

minimum wage for adult employers doing same job shall be given to the child

labourer. Again the court held that there should be special facilities provided by the

employer for the development of quality of life o f the children by providing

recreation, educational and socialisation opportunities. However the court cannot

initiate the process of its own and for that matter we the general people have to take

the initiative so that the practise of child labour can be eradicated from our society at

the earliest.

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. In the Supreme Court Judgment on Child Labour pronounced in

M.C. Mehta Vs State of Tamil Nadu, the State Governments were directed to follow

certain conditions for the regulation and abolition o f Child Labour and their

rehabilitation and welfare. In view of the judgement the Kerala Government started

District Child Labour cum-Welfare Societies in each district. In a proactive step the

Government also passed The Kerala Child Labour (Release, Rehabilitation and

Welfare) Bill, 2002 for the constitution of a State Council for rehabilitation and

welfare of children released from occupations and processes which are o f hazardous

in nature and prohibited by statutes.

The difficulties of enforcing child labour legislation are due

not only to deficiencies in the legal system and enforcement mechanisms. They are

also due to the complexities of the phenomenon o f child labour and to the economic

and socio-cultural context in which it is performed. In the fight against child labour

the real challenge is to design a coherent programme, which tackles the deep-seated

economic, social and cultural factors that contribute to the exploitation o f children.

In this context we may provide some amendments to the

problems in enforcement o f child labour related Laws and Acts, like:

An adequate legislative framework and effective enforcement

machinery are essential to combat child labour. Since such a big problem cannot be

solved overnight, it is important to concentrate on the most serious form o f child

labour - children's work in the most hazardous occupations and industries. There

needs to be a solid legislative basis for action to abolish such practices, as well as

effective procedures and mechanisms for enforcing the law. As our country is yet to

ratify the ILO Convention No. 138 on minimum age for admission to employment

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and the Convention No. 182 for the Prohibition and Immediate Action for the

Elimination of the Worst Forms o f Child Labour, there is an urgent need to ratify

both the Conventions.

Labour inspectors and other enforcement personnel need the

resources to carry out their tasks adequately, as well as the authority and the political

and judicial support necessary to carry out their mission. They require special

training to be able to assess the conditions in which children work, to diagnose the

hazards to which they are exposed, and to deal with the violations. In training

classes, it would be more appropriate to train in the methodology o f prosecution and

the care and the tact necessary to succeed in prosecution. Sensitisation o f

enforcement machinery is essential for change in their attitude and approach towards

the problem of child labour.

Another effective way to improve enforcement o f laws relating

to child labour is to strengthen links between the official authority and community

organizations. The government should bring out literature to create all round

awareness about provisions o f the child labour related Acts. Voluntary, non

governmental organisations and the people at large may be sensitised to the Acts and

Laws. Workers' and employers' organizations, local communities, social workers

and NGOs can be powerful partners and play a big role in the struggle against child

labour as they have more access and information about the conditions o f children

employed in rural areas and the informal sector. The press and media could be asked

to participate in the drive against child labour by publishing convictions made under

the Acts.

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Exclusive Courts may be set up to try and decide cases

involving violation of Child Labour Acts. It should be binding on the court to decide

the cases within specified time limits. The government should revamp the child

related cells to monitor and oversee the regulation of the Child Labour Act.

In a welcome step, the Government of India passed the

Commission for the Protection of Child Rights Act, 2005. The Act provides for

the constitution of a National and State Commissions for protection of Child Rights

in every State and Union Territory. The functions and powers of the National and

State Commissions will be to:

Examine and review the legal safeguards provided by or under any law for

the protection of child rights and recommended measures for their effective

implementation;

Prepare and present annual and periodic reports upon the working o f these

safeguards;

Inquire into violations of child rights and recommended initiation o f

proceedings where necessary;

Undertake periodic review of policies, programmes and other activities

related to child rights in reference to the treaties and other international

instruments;

Spread awareness about child rights among various sections o f society;

Childrens Courts for speedy trial of offences against children or o f violation

of child rights;

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State Governments and Union Territory Administrations to appoint a special

Public Prosecutor for every Childrens Court .I4

In February 2007, Government constituted the National

Commission fo r Protection o f Child Sights (NCPCR) under the chairmanship of

renowned child activist Snathcma Sinha. It is expected that the Commission will take

appropriate steps and advise the government regarding protection o f child rights,

particularly of child labourers. It is found that the commission takes specific

complaints of violation of childrens rights while at work and press the concerned

departments to enforce the law for rescue and release o f child labour. At the moment

there is veiy little coordination between the labour, police, education, welfare and

health departments in the process of enforcing the law to withdraw the child from

work. So the commission has started consultations on the gaps in the existing

institutional framework for rescue of child labour, based on which it would

recommend guidelines for all the states regarding the process o f identifying child

labour, rescuing them from work and ensuring that they are mainstreamed into

schools.15

As the above analysis o f various Acts and constitutional

arrangement shows there are enough provisions in our country to tackle the problem

of child labour but still there is millions o f child labourers in India. The issue is not

the existence o f laws but its enforcement and applicability to the present necessities.

Not a single political party, student organisation or NGO is found to work against

the practice of child labour in Nalbari district. Although the fight against child

labour is difficult because of the complexity of the problem, it is not an impossible

task, providing there is a political will to attack the problem. Public sensitisation

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may be regarded as the first step in this direction, which is at the moment,

particularly in Nalbari district, is clearly lacking.

References:

1. Encyclopaedia of Social Work in India, 1987: Quoted in P. L. Mehta and S. S.

Jaswal (1996) Child Labour And The Law, p 53, Deep & Deep Publications, New

Delhi-27

2. Asha Bajpai, 2003: Child Rights in India, Oxford University Press, New Delhi

3. P. L. Mehta and S. S. Jaswal, 1996: Child Labour And The Law, pp 164-65, Deep

& Deep Publications, New Delhi -27

4. Mahaveer Jain, 2006: Insights on Child Labour, Manak Publications Pvt. Ltd.,

New Delhi-92

5. Asha Bajpai, 2003: Child Rights in India, Oxford University Press, New Delhi

6. Human Rights Watch, 2006 (www.hrw.org)

7. Neera Burra, 1995: Bom to Work, pp 246-7, Oxford University Press, New Delhi

8. Meena Gupta, Awards Digest, Vol.xx:Nos. 7-12, Quoted in Bajpai, 2003, Child

Rights in India, Oxford University Press, New Delhi, p i 79

9. International Conference on Child Labour, Oslo, Norway, 1997

10. ILO, 1998: Child Labor: Targeting the Intolerable, page 112, Geneva

11. Mahaveer Jain, 2006: Insights on Child Labour, Manak Publications Pvt. Ltd.,

New Delhi-92

12. The International Conference on Child Labour, Oslo, Norway, 1997

120
13. Mahaveer Jain, 2006: Insights on Child Labour, Manak Publications Pvt. Ltd.,

New Delhi-92

14. Study on Child Abuse, 2007: Ministry of Women and Child Development,

Government o f India, p29

15. Yojana, 2008: Vol. 52 (May), Special issue on Child Labour, p6

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