Child Labour, Criminalization and the Indian Constituent Assembly

June 13, 2016 | Vineeth Krishna

The 12th of June was observed as the ‘World Day Against Child Labour’. Child labour is still very much part of India’s socio-economic reality. Legal measures have been adopted to tackle the problem with mixed success. One of these is Article 24 of the Indian Constitution that prohibits the employment of children under the age of fourteen in factories, mines and other hazardous contexts. This article takes a close look at the Constituent Assembly of India’s engagement with child labour during the making of the Indian Constitution.

 

In the Constituent Assembly, the origin of Article 24 seems to have been influenced by the Yugoslavian Constitution and the Indian National Congress declaration of 1933. Child labour was initially a sub-clause of the Article 23 (forced labour). At the Advisory Committee stage, child labour was made into a separate article of the Constitution – Article 24.

 

On tracing the passage of the child labour Article through the Constituent Assembly, two things stand out : a) there was little debate around child labour b) there was no attempt to make the violation of Article 24 a criminal offence.

 

The lack of substantial debate around a particular article of the constitution, like the child labour provision, need not imply that the members of the Constituent Assembly did not deem the Article as important – no debate could indicate consensus. However, what seems clear is that the debates around issues related to forced labour seem to dominate at the expense of child labour. The only significant intervention related to child labour was made by Shiban Lal Saxena: he wanted children below sixteen not to be employed in hazardous work, instead of fourteen as mentioned in the text of Article 24. The proposal didn’t not find traction and was not passed or debated.

 

Now coming to the question of criminalization. In the Fundamental Rights section of the Constitution, Article 17 (Untouchability) and Article 23 (Forced Labour) are unique in that they include a penal provision within their texts. Whereas in the case of other Fundamental Rights, the state may or may not criminalize violations, the Constitution clearly puts an obligation on the state to treat the violations of Article 17 and Article 23 as criminal offences and to take necessary steps to actualise the same. It is puzzling that the child labour provision does not have such a penal provision.

 

What are the criteria according to which the framers of the constitution made the violation of two Fundamental Rights as criminal offences? The Constituent Assembly Debates around, and the texts of , Article 17 and 23, seem to suggest three; The Fundamental Right must be – a) a horizontal right (a right that guarantees protection from other individuals rather than the state), b) textually specific and c) deal with a social practice that needed to be eradicated.

 

What is striking is that Article 24 seems to satisfy all three criteria – it is a horizontal right, it is textually specific and finally,  it’s very inclusion into the Fundamental Rights indicates that the Constituent Assembly viewed it as something that needs to be wiped out. And yet, Article 24 does not contain a penal provision that criminalizes its violation. Of course, a law was enacted post-independence which criminalized child labour, but what I am interested in are the intentions and motivations of the Constituent Assembly.

 

We do not have enough evidence to understand the exact reasons for child labour not being criminalized even though it seemed to be a perfect candidate for such a measure. It might be that the normative framework that existed during the late 1940s did not view child labour as a pressing social malaise. The economic circumstances of the majority in the India, during the constitution-making period, may have led to child labour being viewed as an economic necessity that one had to live with, at least for a while. The Constituent Assembly did indeed make a mention of the child labour in the context of hazardous employment in the Constitution. Nonetheless, it is surprising that while untouchability and forced labour were criminalised in one swoop, a child being forced to work, in a ‘hazardous context’ or otherwise, did not seem to nudge the Constituent Assembly into criminalizing the practice of child labour in the Indian Constitution.

Vineeth Krishna

Research Associate

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