Child Labour (Prohibition & Regulation) Act, 1986 Amendment, 2016

Section -2 In this Act, unless the context otherwise requires,--

(i) "adolescent" means a person who has completed his fourteenth year of age but has not completed his eighteenth year;]

(ia)] "appropriate Government" means, in relation to an establishment under the control of the Central Government or a railway administration or a major port or a mine or oilfield, the Central Government, and in all other cases, the State Government;

(ii) "child" means a person who has not completed his fourteenth year of age or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), whichever is more;]

(iii) "day" means a period of twenty-four hours beginning at mid-night;

(iv) "establishment" includes a shop, commercial establishment, workshop, farm, residential hotel, restaurant, eating house, theatre or other place of public amusement or entertainment;

(v) "family", in relation to an occupier, means the individual, the wife or husband, as the case may be, of such individual, and their children, brother or sister of such individual;

(vi) "occupier", in relation to an establishment or a workshop, means the person who has the ultimate control over the affairs of the establishment or workshop;

(vii) "port authority" means any authority administering a port;

(viii) "prescribed" means prescribed by rules made under section 18;

(ix) "week" means a period of seven days beginning at midnight on Saturday night or such other night as may be approved in writing for a particular area by the Inspector;

(x) "workshop" means any premises (including the precincts thereof) wherein any industrial process is carried on, but does not include any premises to which the provisions of section 67 of the Factories Act, 1948 (63 of 1948), for the time being, apply.

Amendment- 2016 -

Section - 3 : Prohibition of employment of children in any occupations and processes.--

(1) No child shall be employed or permitted to work in any occupation or process

[section 3 (2)] According to the new amendment, child is allowed to work at certain places mentioned below.

(a) helps his family or family enterprise, which is other than any hazardous occupations or processes set forth in the Schedule, after his school hours or during vacations;

(b) works as an artist in an audio-visual entertainment industry, including advertisement, films, television serials or any such other entertainment or sports activities except the circus, subject to such conditions and safety measures, as may be prescribed:

Provided that no such work under this clause shall effect the school education of the child.

Explanation.—

For the purposes of this section, the expression,

(a) ‘‘family’’ in relation to a child, means his mother, father, brother, sister and father’s sister and brother and mother’s sister and brother;

(b) ‘‘family enterprise’’ means any work, profession, manufacture or business which is performed by the members of the family with the engagement of other persons;

(c) ‘‘artist’’ means a child who performs or practices any work as a hobby or profession directly involving him as an actor, singer, sports person or in such other activity as may be prescribed relating to the entertainment or sports activities falling under clause (b) of sub-section (2).

[section 3A] No adolescent shall be employed or permitted to work in any of the hazardous occupations or processes set forth in the Schedule:

THE SCHEDULE

(1) Mines.

(2) Inflammable substances or explosives.

(3) Hazardous process.

Explanation.—

For the purposes of this Schedule, “hazardous process” has the meaning assigned to it in clause (cb) of the Factories Act, 1948.’

(cb) "hazardous process" means any process or activity in relation to an industry specified in the First Schedule where, unless special care is taken, raw materials used therein or the intermediate or finished products, bye-products, wastes, or effluents thereof would-

(i) cause material impairment to the health of the persons engaged in or connected therewith, or

(ii) result in the pollution of the general environment:

Amendment- 2016 - [section 3] No child shall be employed or permitted to work in any occupation or process (The Child Labour (Prohibition and Regulation) Amendment Bill, 2012 )

under this section, no child shall be employed are permitted to work in any establishment, occupation or process. Which means child should not be employed are permitted to work anywhere. but according to the [section 3 (2)] child is permitted to work at their own family business and audio & visual industry. provided that such work should not hamper or effect School education of a child.

Section 3A. Prohibition of employment of adolescents in certain hazardous occupations and processes.

(3A). Prohibition of employment of adolescents in certain hazardous occupations and process. No adolescent shall be employed or permitted to work in any of the hazardous occupations or processes set forth in the Schedule:

Provided that the Central Government may, by notification, specify the nature of the non-hazardous work to which an adolescent may be permitted to work under this Act.

Section 4. Power to amend the Schedule.

The Central Government, after giving by notification in the Official Gazette, not less than three months notice of its intention so to do, may, by like notification, add to, or, omit from, the Schedule any hazardous occupation or process] and thereupon the Schedule shall be deemed to have been amended accordingly.

Amendment- 2016 - In section 4 of the principal Act, for the words “add any occupation or process to the Schedule”, the words “add to, or, omit from, the Schedule any hazardous occupation or process” shall be substituted.

Section 5. Technical Advisory Committee.

(1) The Central Government may, by notification in the Official Gazette, constitute an advisory committee to be called the ¹[Technical Advisory Committee] (hereafter in this section referred to as the Committee) to advise the Central Government for the purpose of addition of occupations and processes to the Schedule.

(2) The Committee shall consist of a Chairman and such other members not exceeding ten, as may be appointed by the Central Government.

(3) The Committee shall meet as often as it may consider necessary and shall have power to regulate its own procedure.

(4) The Committee may, if it deems it necessary so to do, constitute one or more sub-committees and may appoint to any such sub-committee, whether generally or for the consideration of any particular matter, any person who is not a member of the Committee.

(5) The term of office of, the manner of filling casual vacancies in the office of, and the allowances, if any, payable to, the Chairman and other members of the Committee, and the conditions and restrictions subject to which the Committee may appoint any person who is not a member of the Committee as a member of any of its sub-committees shall be such as may be prescribed.

Amendment- 2016 - In section 5 of the principal Act,— (i) in the marginal heading, for the words ‘‘Child Labour Technical Advisory Committee’’, the words ‘‘Technical Advisory Committee’’ shall be substituted; (ii) in sub-section (1), for the words ‘‘Child Labour Technical Advisory Committee’’, the words ‘‘Technical Advisory Committee’’ shall be substituted.

Section 6. Application of Part.

The provisions of this Part shall apply to an establishment or a class of establishments in which none of the occupations or processes referred to in [section 3A] is carried on.

Amendment- 2016- In section 6 of the principal Act, for the word and figure ‘‘section 3’’, the word, figure and letter ‘‘section 3A’’ shall be substituted.

[section 8] Weekly holidays (adolescent only)

Every adolescent employed in establishment should be allowed to have a holiday for a whole day once in a week.

[section 9] Notice to Inspector

Every employer who employed adolescent at his establishment should intimate to the inspector appointed by the government within 30 days from date of employment of child.

[Section 10]. DISPUTES AS TO AGE. (adolescent) –

If any question arises between an Inspector and an occupier as to the age of any adolescent who is employed or is permitted to work by him in an establishment, the question shall, in the absence of a certificate as to the age of such child granted by the prescribed medical authority, be referred by the Inspector for decision to the prescribed medical authority.

[section 11] Maintenance of register

Any establishment where adolescent is employed or permitted to work, a register should be maintained by the owner of establishment and should be made available all the times during working hours for inspection by Inspector appointed by the government for this purpose. The register should contain following details

• 1. Name of the child

  2. date of birth of the child

  3. number of working hours and internal for rest to child

  4. nature of work dealing child

  5. any other particulars

[Section 13 ] Healthy and Safety (adolescent )

Appropriate government is having power make rules on the following matters for the health and safety of the children employed or permitted to work in any establishment or class of establishments. (a) cleanliness in the place of work and its freedom from nuisance; (b) disposal of wastes and effluents; (c) ventilation and temperature; (d) dust and fume; (e) artificial humidification; (f) lighting; (g) drinking water; (h) latrine and urinals; (i) spittoons; (j) fencing of machinery; (k) work at or near machinery in motion; (l) employment of children on dangerous machines; (m) instructions, training and supervision in relation to employment of children on dangerous machines; (n) device for cutting off power; (o) self-acting machines; (p) easing of new machinery; (q) floor, stairs and means of access; (r) pits, sumps, openings in floors, etc.; (s) excessive weights; (t) protection of eyes; (u) explosive or inflammable dust, gas, etc.; (v) precautions in case of fire; (w) maintenance of buildings; and (x) safety of buildings and machinery.

[section 14] Penalties

(1) Whoever employs any child or permits any child to work in contravention of the provisions of section 3 shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years, or with fine which shall not be less than twenty thousand rupees but which may extend to fifty thousand rupees, or with both: Provided that the parents or guardians of such children shall not be punished unless they permit such child for commercial purposes in contravention of the provisions of section 3.(IA) Whoever employs any adolescent or permits any adolescent to work in contravention of the provisions of section 3A shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to two years or with fine which shall not be less than twenty thousand rupees but which may extend to fifty thousand rupees, or with both:

Provided that the parents or guardians of such adolescent shall not be punished unless they permit such adolescent to work in contravention of the provisions of section 3A.

(1B ) Notwithstanding anything contained in sub-sections (1) and (1A) the parents or guardians of any child or adolescent referred to in section 3 or section 3A, shall not be liable for punishment, in case of the first offence."(2 ) Whoever, having been convicted of an offence under section 3 or section 3A commits a like offence afterwards, he shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to three years.(2A) Notwithstanding anything contained in sub-section (2), the parents or guardian having been convicted of an offence under section 3 or section 3A,commits a like offence afterwards, he shall be punishable with a fine which may extend to ten thousand rupees. "Constitution of Child and Adolescent Labour Rehabilitation Fund

Section 14B. (1) The appropriate Government shall constitute a Fund in every district or for two or more districts to be called the Child and Adolescent Labour Rehabilitation Fund to which the amount of the fine realized from the employer of the child and adolescent, within the jurisdiction of such district or districts, shall be credited.

(2) The appropriate Government shall credit an amount of Rs. 15000/- to the Fund for each child or adolescent for whom the fine amount has been credited under sub-section (1).

(3) The amount credited to the Fund under sub-sections (1) and (2) shall be deposited in such banks or invested in such manner, as the appropriate Government may decide.

(4) The amount deposited or invested, as the case may be under sub-section (3), and the interest accrued on it, shall be paid to the child or adolescent in whose favour such amount is credited, in such manner as may be prescribed.

Explanation:—

For the purposes of appropriate Government, the Central Government shall include the Administrator or the Lieutenant Governor of a Union territory under article 239A of the Constitution.

Rehabilitation of child or adolescent

Section 14C. The child or adolescent, who is employed in contravention of the provisions of this Act and rescued, shall be rehabilitated in accordance with the laws for the time being in force.

Fails to pay - Section 14D (2) If the accused fails to pay such amount for composition of the offence, then, the proceedings shall be continued against such person in accordance with the provisions of this Act.

Section 15. Modified application of certain laws in relation to penalties.

(1) Where any person is found guilty and convicted of contravention of any of the provisions mentioned in sub-section (2), he shall be liable to penalties as provided in sub-sections (1) and (2) of section 14 of this Act and not under the Acts in which those provisions are contained.

(2) The provisions referred to in sub-section (1) are the provisions mentioned below:--

(a) section 67 of the Factories Act, 1948 (63 of 1948);

(b) section 40 of the Mines Act, 1952 (35 of 1952);

(c) section 109 of the Merchant Shipping Act, 1958 (44 of 1958); and

(d) section 21 of the Motor Transport Workers Act, 1961 (27 of 1961).

Section 16. Procedure relating to offences.

(1) Any person, police officer or Inspector may file a complaint of the commission of an offence under this Act in any court of competent jurisdiction.

(2) Every certificate as to the age of a child which has been granted by a prescribed medical authority shall, for the purposes of this Act, be conclusive evidence as to the age of the child to whom it relates.

(3) No court inferior to that of a Metropolitan Magistrate or a Magistrate of the first class shall try any offence under this Act.

Section 17. Appointment of Inspectors.

The appropriate Government may appoint Inspectors for the purposes of securing compliance with the provisions of this Act and any Inspector so appointed shall be deemed to be a public servant within the meaning of the Indian Penal Code (45 of 1860).

Section 17A. District Magistrate to implement the provisions.

The appropriate Government may confer such powers and impose such duties on a District Magistrate as may be necessary, to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer as may be prescribed.

Amendment- 2016- 17A. The appropriate Government may confer such powers and impose such duties on a District Magistrate as may be necessary, to ensure that the provisions of this Act are properly carried out and the District Magistrate may specify the officer, subordinate to him, who shall exercise all or any of the powers, and perform all or any of the duties, so conferred or imposed and the local limits within which such powers or duties shall be carried out by the officer as may be prescribed.

Section 17B. Inspection and monitoring.

The appropriate Government shall make or cause to be made periodic inspection of the places at which the employment of children is prohibited and hazardous occupations or processes are carried out at such intervals as it thinks fit, and monitor the issues, relating to the provisions of this Act.]

Amendment- 2016- 17B. The appropriate Government shall make or cause to be made periodic inspection of the places at which the employment of children is prohibited and hazardous occupations or processes are carried out at such intervals as it thinks fit, and monitor the issues, relating to the provisions of this Act.”.

Section 18. Power to make rules.

(1) The appropriate Government may, by notification in the Official Gazette and subject to the condition of previous publication, make rules for carrying into effect the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:--

(a) the conditions and the safety measures under clause (b) of sub-section (2) and other activities under clause (b) to Explanation of sub-section (2) of section 3;

(b)] the term of office of, the manner of filling casual vacancies of, and the allowances payable to, the Chairman and members of the ³[Technical Advisory Committee] and the conditions and restrictions subject to which a non-member may be appointed to a sub-committee under sub-section (5) of section 5;

(c)] number of hours for which a child may be required or permitted to work under sub-section (1) of section 7;

(d)] grant of certificates of age in respect of young persons in employment or seeking employment, the medical authorities which may issue such certificate, the form of such certificate, the charges which may be made thereunder and the manner in which such certificate may be issued:

Provided that no charge shall be made for the issue of any such certificate if the application is accompanied by evidence of age deemed satisfactory by the authority concerned;

(e)] the other particulars which a register maintained under section 11 should contain.

(f) the manner of payment of amount to the child or adolescent under sub-section (4) of section 14B;

(g) the manner of composition of the offence and payment of amount to the appropriate Government under sub-section (1) of section section 14D;

(h) the powers to be exercised and the duties to be performed by the officer specified and the local limits within which such powers or duties shall be carried out under section 17A.

Amendment- 2016- In section 18 of the principal Act, in sub-section (2),— (i) clause (a) shall be relettered as clause (b) thereof and before clause (b), as so relettered, the following clause shall be inserted, namely:—

(a) the conditions and the safety measures under clause (b) of sub-section (2) and other activities under clause (b) to Explanation of sub-section (2) of section 3;

(ii) in clause (b), as so relettered, for the words "Child Labour Technical Advisory Committee", the words “Technical Advisory Committee” shall be substituted.

(iii) clauses (b), (c) and (d) shall be relettered as clauses (c), (d) and (e) thereof and in clause (c) as so relettered, for the word "child", the word "adolescent" shall be substituted;

(iv) after clause (e), as so relettered, the following clauses shall be inserted, namely:—

(f) the manner of payment of amount to the child or adolescent under sub-section (4) of section 14B;

(g) the manner of composition of the offence and payment of amount to the appropriate Government under sub-section (1) of section section 14D;

(h) the powers to be exercised and the duties to be performed by the officer specified and the local limits within which such powers or duties shall be carried out under section 17A.

Facts [+]

A penalty not exceeding Rs.100 has been the only ‘punishment’ imposed on nearly 12,000 employers of child labour across Andhra Pradesh state over the past 16 years. Despite the presence of a rigorous ‘Child Labour Prohibition and Regulation’ (CLPR) Act, authorities have prosecuted majority offenders under the feeble ‘A.P. Shops and Establishments’ (APSE) Act which stipulates a pittance as penalty.

While CLPR Act imposes a fine of Rs.10, 000 along with a month-long imprisonment on violators, AP Shops & Establishment Act imposes a fine of merely Rs.100 for first-time employers of child labour. Those are caught a second time are fined between Rs.250 and Rs.500 under APSE Act. Yet 15,054 employers have been booked under APSE Act as against a meagre 2,659 under CLPR Act.

Even as CLPR only prohibits certain ‘hazardous’ employment among children and regulates others, the punishment imposed on violators of the stringent regulations is far higher than that under APSE Act which prohibits all employment among children. Hence, of the 11,447 employers convicted from 1996 to 2010, a penalty of only Rs.12 lakh has been collected.

Less imprisonments

Moreover, despite the APSE Act stipulating a three-month imprisonment for employers of child labour who have been caught a third time, few have been sent to imprisonment in over a decade. “Only a handful of nearly 12,000 convicted employers have been imprisoned so far as there is no proper track of repeat offenders,” confess officials.

When contacted, officials admitted that cases could have been booked under CLPR Act which stipulates stringent punishment as against a fine of Rs.100 which is barely a deterrent to employing child labour. The cases, however, had been booked under APSE as it completely prohibits employment rather than only regulating it, they added.

Minimum Wages Act

“To overcome the huge lacuna in APSE Act we are punishing offenders under the Minimum Wages Act which imposes heavy penalty,” they said.

Accepting the suggestions of amicus curiae and senior advocate A K Ganguly, the court ordered:

• Fresh survey to identify bonded labour every three years and findings to be saved as computerized data

• District and sub-divisional vigilance committee to submit reports to NHRC once in three years

• All child domestic helps to be identified and sent to school

• All states to re-calculate fund requirement for rehabilitation and enhance the package from the present limit of Rs 20,000 for each bonded labourer

• States and UTs should submit report to NHRC every six months

• Vigilance committees, if not already set up, to be constituted in six months

47% of children in India are out of school

Oct -15-2012: The Supreme Court on Monday ordered the central and state governments to conduct a countrywide drive to identify children below 14 years engaged as domestic helps and send them to school to fulfil the mandate of the Right to Education Act for their free and compulsory education.

The court said on the one hand, the RTE Act mandated free and compulsory education to children below 14 years, that is up to Class 8, while on the other, many of them were still working as domestic helps in both urban and rural areas.

Large number of children are working as domestic helps in urban, town and rural areas with no chance to go to school even though education from Standard 1 to 8 is compulsory under the Right of Children to Free and Compulsory Education Act, 2009.

Facts about child labour in the India