Hazardous occupations for children

What is a Hazardous Occupation?

A Hazardous Occupation is one that threatens a worker's life. Many types of jobs, like mining, bangle making, etc., involve extensive hard work and physical labour. This has adverse effects on the eyes, health, etc., of the workers. Basically, these jobs, though legal in India, are very dangerous in nature.

A Hazardous occupation can be distinguished from a non-hazardous occupation by looking at the risk involved in completing the job. For example, in jobs like teaching, stitching, etc., the workers' health does not suffer as much as in jobs like mining, acid manufacturing, etc. By their inherent nature, these industries involve interaction with harmful elements, which takes a huge toll on the person's health.

Who is a Child Labour?

A child is a person who has not completed the age of 14, or as has been defined in the RTE Act, 2009. However, some of the statutes define a child as a person below the age of 18. However, interestingly, the Right to Education Act, 2009 defines a child to be a male or female who is between the ages of 6 and 14 years of age. There is one more statute that places contingency on the gender to define a child. As per the Prohibition of Child Marriage Act, 2006, if a male has not yet completed the age of 21 years, then he will be considered a child. On the other hand, if a female has not completed the age of 18 years, then she will be considered a child as per the same Act.

Also, the Indian Majority Act, 1875, even though it does not use the word "child", defines the age of majority to be 18. Similarly, the Mines Act, 1952, defines an adult to be equal to or above the age of 18 years, and does not explicitly define a child.

The Factories Act, 1948, defines a child to be a person below the age of 15 years. It further distinguishes between the categories of "child" and "adolescent" by categorising an adolescent as someone below the age of 18, but above the age of 15. The Bharatiya Nyaya Sanhita (BNS), 2023, also defines a child. As per BNS, 2023, a child is any person who is below the age of 18 years. The National Commission for Protection of Child Rights(NCPCR) defines a child as a person falling between the ages of 0 and 18 years. The National Policy for Children, 2013, defines a child as below the age of 18 years.

All of these definitions work in tandem at the same time and apply to various aspects of the interaction of the child with society. These definitions, additionally, are derived on the basis of Acts enacted by the Centre. However, it is also necessary to understand how the category of the child has been defined in many states.

Various Definitions of a Child as adopted by the States

A child has been defined as a boy or a girl who has not completed the age of 18 years. The Goa Children's Act, 2003, defines a child to be below 18 years. Further, it segregates it with the "child in case of child labour" and defines a child as a person below the age of 14 years.

Official Definition of Hazardous Occupation

The Factories Act, 1948, defines "hazardous process" as one where, unless due care is taken, the materials can cause impairment of health or result in pollution of the environment. The Child Labour(Prohibition and Regulation) Act,1986, also relies on the same definition, based on which the government notifies the hazardous occupations on a periodical basis. The last notification in this regard was passed on 30.08.2017, which amended the Schedule to The Child and Adolescent Labour(Prohibition and Regulation) Act, 1986.

Section 3 of the Child and Adolescent Labour(Prohibition and Regulation) Act, 1986 prohibits occupations that are considered hazardous for children. The Schedule to the Act lists down the following hazardous jobs.

1. Mines and
2. Inflammable Substances and Explosives
3. Hazardous Processes -

PART A - Hazardous occupations and processes in which adolescents are prohibited from working, and children are prohibited from helping

1. Mines and Collieries - Stone Quarries, Brick Kilns, Preparatory Processes, Open Pit Mines
2. Inflammable Substances and explosives - Production, Storage or sale of fire crackers, manufacture, storage, sale, loading, unloading or transport of explosives as defined under the Explosives Act, 1884, work relating to manufacturing, handling, grinding, glazing, cutting, polishing, welding, moulding, electro-plating, or any other process involving inflammable substances, waste management of inflammable substances, explosives and their by-products or natural gas and other related products.

Part A further refers to the hazardous processes as are defined in the First Schedule of the Factories Act, 1948, which range from metallurgical industries, coal, power generating industries, petroleum industries, drugs and pharmaceutical industries, insecticides industries, glass and ceramics, etc.

PART B - List of occupations and processes where children are prohibited from helping in family or family enterprises (in addition to PART A)

OCCUPATIONS - includes occupations like

1. transport of passengers, goods or mail by railways;

2. cinder picking, clearing of an ash pit or building operation in the railway premises;

3. Work in a catering establishment at a railway station, involving the movement of a vendor or any other employee of the establishment from one platform to another or into or out of a moving train

4. work relating to the construction of a railway station or with any other work where such work is done in close proximity to or between the railway tracks;

5. a port authority within the limits of any port;

6. automobile workshops and garages;

7. Handloom and powerloom industry;

8. plastic units and fibreglass workshops;

9. domestic workers or servants;

10. dhabas (roadside eateries), restaurants, hotels, motels, resorts;

11. diving;

12. circus;

13. caring of Elephant;

14. power-driven bakery machine;

15. shoe making

PROCESSES - Such processes have also been comprehensively covered by the notification, which has been given as under -

1. Carpet-weaving, including preparatory and incidental processes thereof;

2. Cement manufacture, including bagging of cement;

3. Cloth printing, dyeing and weaving, including processes, preparatory and incidental thereto;

4. Shellac manufacture;

5. Soap manufacture;

6. Wool-cleaning;

7. Building and construction industry, including processing and polishing of granite stones; hauling and stacking materials; carpentry; masonry;

8. Manufacture of slate pencils (including packing);

9. Manufacture of products from agate;

10. Cashew and cashew nut descaling and processing;

11. Metal cleaning, photo engraving and soldering processes in electronic industries;

12. Aggarbatti manufacturing;

13. Automobile repairs and maintenance, including processes incidental thereto, namely, welding, lathe work, dent beating and painting;

14. Roof tile units;

15. Cotton ginning and processing and production of hosiery goods;

16. Detergent manufacturing;

17. Fabrication workshops (ferrous and non-ferrous);

18. Gem cutting and polishing;

19. Handling of chromite and manganese ores;

20. Jute textile manufacture and coir making;

21. Lime kilns and manufacture of lime;

22. Lock making;

23. Manufacturing processes having exposure to lead such as primary and secondary smelting, welding and cutting of lead-painted metal constructions, welding of galvanized or zincsilicate, polyvinyl chloride, mixing (by hand) of crystal glass mass, sanding or scraping of leadpaint, burning of lead in enamelling workshops, lead mining, plumbing, cable making, wirepatenting, lead casting, type founding in printing shops. shot making and lead glass blowing;

24. Manufacture of cement pipes, cement products and other related work;

25. Manufacture of glass, glassware, including bangles, fluorescent tubes, bulbs and other similar glass products;

26. Manufacturing or handling of pesticides and insecticides;

27. Manufacturing or processing and handling of corrosive and toxic substances;

28. Manufacturing of burning coal and coal briquettes;

29. Manufacturing of sports goods involving exposure to synthetic materials, chemicals and leather;

30. Oil expelling and refinery;

31. Paper making;

32. Potteries and ceramic industry;

33. Polishing, moulding, cutting, welding and manufacturing of brass goods in all forms;

34. Processes in agriculture where tractors, threshing and harvesting machines are used and chaff cutting;

35. Saw mill – all processes;

36. Sericulture processing;

37. Skinning, dyeing and processes for manufacturing of leather and leather products;

38. Tyre making, repairing, re-treading and graphite beneficiation;

39. Utensils making, polishing and metal buffing;

40. ‘Zari’ making and processes involving the use of zari (all processes);

41. Graphite powdering and incidental processing;

42. Grinding or glazing of metals;

43. Diamond cutting and polishing;

44. Rag picking and scavenging;

45. Mechanized fishing;

46. Food processing;

47. Beverage industry;

48. Cultivating, sorting, drying and packaging in spice industry;

49. Timber handling and loading;

50. Mechanical lumbering;

51. Warehousing;

52. Massage parlours, gymnasiums, or other recreational centres, or in medical facilities;

53. Operations involving the following dangerous machines:- (a) hoists and lifts; (b) lifting machines, chains, ropes and lifting tackles; (c) revolving machinery; (d) power presses; (e) machine tools used in the metal trades;

54. Composing types for printing, printing by letterpress, lithography, photogravure or other similar process or book-binding, as specified in sub-clause (iv) of clause (k) of section 2 of the Factories Act, 1948.

The said lists are not comprehensive and are continuously updated as per the latest government notifications. Further, as per Section 3(2) of the Act, the children may help in their family enterprise. As per Section 3(2)(a), the job should not be a hazardous occupation, and such help should be done after school hours. Further, such help may also be given on vacation days as well. In the definition of family, the following relationships are included -

1. Mother
2. Father
3. Brother
4. Sister
5. Father’s sister and brother
6. Mother’s sister and brother

Further, the meaning of family enterprise is any work, profession, business, etc., which is done by family members.

As per Section 3(2)(b), child artists in the entertainment industry, like advertisements, films, etc., are allowed to work, except that such work should include appropriate safety measures.

Various policies and initiatives

The governments, both Central and State, have launched various policies and initiatives for the eradication of child labour.

The Constitution of India, by Article 24, prohibits the employment of children in factories, mines or any other hazardous employment. Further, Article 39, part of the Directive Principles of State Policy, one of the state's aim is to secure that "the health and strength of 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 or strength."

Central Level

The first step in recognition of the importance of children as the country's future was realised with the official adoption of The National Policy for Children on 22.08.1974. This policy recognised that children should be protected against "neglect", "cruelty, " and "exploitation." Further, it explicitly stated that "No child under 14 years shall be permitted to be engaged in any hazardous occupation or be made to undertake heavy work."

In 1987, the National Policy for Child Labour was passed, which contained the action plan for tackling the problem of child labour. The policy envisages:

• A Legal Action Plan for the strict enforcement of the Legislation to ensure that children are not employed in hazardous industries.

Under this prong, the focus is on strict and effective enforcement of the legislation, such as the Child Labour(Prohibition and Regulation) Act, 1986, Factories Act, 1948, and Mines Act, 1952. These legislations define and classifies the "hazardous occupation."

• Focusing and convergence of general development programmes for benefiting children wherever possible

As Child Labour is a multi-pronged problem, the need of the hour is a multi-pronged strategy to tackle it. This aim is recognised through the RTE Act, 2009. With the launch of Sarva Shiksha Abhiyan,

• Project-based action plan of action for launching of projects for the welfare of working children in areas of high concentration of child labour.

In pursuance of this policy, the National Child Labour Project(NCLP) was launched in the year 1988. Under this policy, children aged 9-14 years are withdrawn from the work and sent to the NCLP Special Training Centre. Further, adolescents under the age o 18 years working in hazardous occupations are also the point of focus.

Architecture for implementation of NCLP {sourced from: https://pencil.gov.in/users/about_nclp}

The overall approach of the project is to create an enabling environment in the target area, where children are motivated and empowered through various measures to enrol in schools and refrain from working, and households are provided with alternatives to improve their income levels.

Further, in the year 2013, the National Policy for Children was passed, which replaced the National Policy for Children, 1974. The Government of India adopted this policy on 26th April, 2013. This policy reaffirmed the centrality of children to the development of the nation. The policy listed down Survival, Health, Nutrition, development, education, protection and participation as the undeniable rights of every child. Apart from these focus areas, the focus was also diverted towards active participation through advocacy and partnerships, along with coordination and consistent monitoring. It also said that the review of the policy shall be taken up every 5 years, in which the Ministry of Women and Child Development will lead the process.

Pursuant to this policy, the National Plan of Action for Children also came up in 2016. This policy aims to concretise the objectives listed in the National Policy for Children, 2013. This document divides the priority areas into 4 parts:

Key Priority Area 1: Survival, Health and Nutrition

Key Priority Area 2: Education and Development

Key Priority Area 3: Protection

Key Priority Area 4: Participation

State Level

Tamil Nadu

Tamil Nadu adopted the State Action Plan for Eradication of Child Labour and Eradication of Adolescent Labour in Hazardous occupations and processes in the year 2019. This plan was a revision of the 2003 plan. It had the following objectives:

To prohibit the employment of children below the age of 14 years in all Industries.

To prohibit the employment of adolescents in hazardous employment and regulate their employment in other sectors.

To rescue and rehabilitate child/adolescent labour.

To mobilise community participation and create a positive climate for the elimination of child and adolescent labour.

To effect convergence of different departments for the prevention, rescue and rehabilitation of child/adolescent labour.

The policy focused on skill training, vocational training and providing employment opportunities to the adolescents rescued from the hazardous occupations. The state constituted an Apex Committee - "State Authority on elimination of child labour", chaired by the Chief Secretary. The Secretaries of Labour and Employment, Finance, Education, Rural Development, Health and Family Welfare, Micro Small & Medium Enterprises Commissioner of Labour, Directorate of Industrial Safety and Health, Director of Social Defence, Director General of Police and 2 psychiatrists, as declared as members.

Judicial Pronouncements

MC Mehta v State of Tamil Nadu (1996) 6 SCC 756

This case was filed by legal stalwart MC Mehta, who challenged the continued employment of children in the fireworks industry by invoking the jurisdiction of the Supreme Court of India under Article 32 of the Indian Constitution. The court disposed of the petition by noting how the right of children under Article 24 of the Constitution of India, which prohibits the exploitation of children, is being violated.

However, an accident took place which led to serious injuries to many people, including children. Thus, the court took suo motu cognisance in this regard and constituted a committee to look into the matter. The court also noted how the other cities, namely, Bhavnagar, had come up to be another "Sivakasi in making." The court went to the extent of highlighting how international conventions, of which India was one of the parties, were, in reality, futile in preventing this menace.

The court noted the following causes for the continuation of child labour:

1. Poverty
2. Low wages of the adult
3. unemployment
4. absence of schemes for family allowances
5. migration to urban areas
6. large families
7. children being cheaply available
8. non-existence of provisions for compulsory education
9. illiteracy and ignorance of parents

The court issued few directions in this regard, like providing compensation through the welfare funds, etc.

1. The Employers must be asked to pay compensation for every child employed in contravention of the provisions of the Act, a sum of Rs. 20,000.
2. The Inspectors appointed under Section 17 of the Act would ensure that the said sum would be paid into the Child Labour Rehabilitation-cum-Welfare Fund.

Few other directions which the court issued were as follows:

1. A survey would be made of the aforesaid type of child labour which would be completed within six months from today.
2. Work could be taken up regarding those employments which have been mentioned in Article 24, which may be regarded as core sector, to determine which hazardous aspect of the employment would be taken as criterion. The most hazardous employment may rank first in priority, to be followed by comparatively less hazardous and so on. It may be mentioned here that the National Child Labour Policy as announced by the Government of India has already identified some industries for priority action and the industries identified are as below: The match industry in Sivakasi, Tamil Nadu. The diamond polishing industry in Surat, Gujarat. The precious stone polishing industry in Jaipur, Rajasthan. The glass industry in Firozabad, Uttar Pradesh. The brass-ware industry in Moradabad, Uttar Pradesh. The handmade carpet industry in Mirzapur-Bhadohi, Uttar Pradesh. The lock-making industry in Aligarh, Uttar Pradesh. The slate industry in Markapur, Andhra Pradesh. The slate industry in Mandsaur, Madhya Pradesh.
3. The employment to be given as per our direction could be dovetailed to other assured employment. On this being done, it is apparent that our direction would not require generation of much additional employment.
4. The employment so given could as well be the industry where the child is employed, a public undertaking and would be manual in nature inasmuch as the child in question must be engaged in doing manual work. The undertaking chosen for employment shall be one which is nearest to the place of residence of the family.
5. In those cases where alternative employment would not be made available as aforesaid, the parent/guardian of the child concerned would be paid the income which would be earned on the corpus, which would be a sum of Rs 25,000 for each child, every month. The employment given or payment made would cease to be operative if the child would not be sent by the parent/guardian for education
6. On discontinuation of the employment of the child, his education would be assured in suitable institution with a view to make him a better citizen. It may be pointed out that Article 45 mandates compulsory education for all children until they complete the age of 14 years; it is also required to be free. It would be the duty of the Inspectors to see that this call of the Constitution is carried out.
7. A district could be the unit of collection so that the executive head of the district keeps a watchful eye on the work of the Inspectors. Further, in view of the magnitude of the task, a separate cell in the Labour Department of the appropriate Government would be created. Monitoring of the scheme would also be necessary and the Secretary of the Department could perhaps do this work. Overall monitoring by the Ministry of Labour, Government of India, would be beneficial and worthwhile.
8. The Secretary to the Ministry of Labour, Government of India would apprise this Court within one year from today about the compliance of aforesaid directions. If the petitioner would need any further or other order in the light of the compliance report, it would be open to him to do so.
9. We should also like to observe that on the directions given being carried out, penal provision contained in the aforenoted 1986 Act would be used where employment of child labour, prohibited by the Act, would be found.
10. Insofar as the non-hazardous jobs are concerned, the Inspector shall have to see that the working hours of the child are not more than four to six hours a day and it receives education at least for two hours each day. It would also be seen that the entire cost of education is borne by the employer.

Bachpan Bachao Andolan v. Union of India, (2011) 5 SCC 1

This petition was filed to oppose the rampant child trafficking, due to which many children were forced to perform in circuses. This also made them vulnerable to sexual abuse and other exploitative practices, as some of the children who escaped testified. The petitioner began the compilation of a report named "Eliminating Child Labour from Indian Circuses" in 2002 and documented these instances. With this, the petitioner submitted how the children were made to perform in exploitative conditions, with their welfare compromised for achieving high profits by the circus operators.

The court noted various lapses on the part of the government in implementing the policies, as well as how employers were exploiting the children for their profit. The court issued directions, which included the implementation of the fundamental right under Article 21-A, random raids in circuses to find out about the exploitation of children, etc. However, the court limited these guidelines to be implemented only in the context of circuses. It left it to the discretion of the government to implement further guidelines for other sectors.

People's Union for Democratic Rights v Union of India AIR 1982 SC 1473

The case arose due to the outrage over the working conditions of the workers at the construction sites connected with the Asian Games. One of the petitioners wrote a letter to one of the Supreme Court Justices, P.N. Bhagwati, in which the conditions of these workers had been highlighted. Since the letter was based on a report made by three social scientists, it was treated as a Writ Petition. The workers had complained of lower than mandated wages and exploitation by jamadars and contractors. It was also submitted that children were employed at the site.

When these claims were presented before the court, the Union of India admitted such deductions from the wages by the jamadars. On the question of child employment, the court clearly held it to be a hazardous occupation and ordered the State Governments to take necessary steps. The court prohibited the employment of children below 14 years of age at construction sites.

The court also dwelt on Article 23, which contains the term "forced labour." The court also held that payment of wages less than the decided ones also amounted to "forced labour."

International Jurisdiction

Forced Labour Convention, 1930

Adopted on 28th June 1930, the convention defined "forced or compulsory labour" as meaning "all work or service which is exacted from any person under the menace of any penalty and for which the said person has not offered himself voluntarily."

However, the convention did not abolish forced labour. It allowed some forms of forced labour in the form of military service, civic obligations, etc.

However, this convention marked a beginning in the acknowledgement of the existence of forced labour as a widespread issue.

Minimum Age Convention - ILO Convention No. 138, 1973

Adopted in 1976, this framework set the age of 15 years as the minimum for working age. It set 18 years as a minimum for doing hazardous work, defined as "work that, due to its nature or the circumstances in which it is carried out, is likely to jeopardise children’s health, safety or morals".

The convention, however, allowed the countries to permit the hazardous work from the age of 16 years of age, with the condition that the health and safety of the young persons is fully taken care of. The requirement was also to consult with the organisation of the workers and employers.

United Nations Convention on the Rights of the Child, 1989

Under Article 32, the Convention recognised the right of the child to be protected from "economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development."

The Convention exhorted the states to provide for a minimum age required for employment, regulations regarding the hours and conditions of employment, and penalties, etc., for effective enforcement of the aforesaid provisions.

Further, under Article 36, the Convention mandated the State's involvement in the protection of the child "against all other forms of exploitation prejudicial to any aspects of the child's welfare."

Worst Forms of Child Labour Convention, 1999 - Convention No. 182

Under Article 3, the Convention defined the term "the worst forms of child labour" as meaning:

"(a) All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;

(b) The use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;

(c) The use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties;

(d) Work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children."

Under Article 7, the Convention exhorted the members to take actions so as to implement the measure and prevent the engagement of children in the worst forms of child labour.

Foreign Jurisdiction

United States

Fair Labour Standards Act, 1938

Under Section 203(l), the Act defines the term "oppressive child labour" to include employment conditions in which the employee is under the age of 16 years, or the employee is between the ages of 16 and 18 years, which the Secretary of Labour finds to be particularly "hazardous" for the health of the child.

Under Section 212, the Act comprehensively deals with child labour. The Section again prohibits the usage of the "oppressive child labour."

The Management of Health and Safety at Work Regulations, 1999

Under Regulation 19, the employer is mandated to protect the young persons employed at their work. The Regulation explicitly mandates that the young persons be guarded against the agents that are "toxic and carcinogenic."

Apart from these conventions, there have been various conventions that have set distinct limits of the working age of the child, like the Minimum Age (Industry) Convention, 1919.

Conclusion

Although many policies have been implemented for the purpose of prohibiting child labour, the main key remains the implementation of those policies rather than solely focusing on refining them. Many of the conventions focused on rights called for the stringent application of the protocols.

Hence, the focus should also be on making the implementation of the Acts, Regulations, Conventions, etc., more and more robust. This will help protect the children from the hazardous occupations and will help in upholding their overall welfare.

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