Indian law and international law prohibit the use of bonded child labor. Under its own law and as a party to numerous international instruments, India is obliged to prohibit all forms of slavery, including debt bondage, child servitude, and forced labor, as well as to affirmatively protect children from economic exploitation and hazardous work.
The convention defines debt bondage as:
In addition, ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, which India has not ratified but should at its earliest opportunity, prohibits, for all persons under eighteen:
India also is a party to the International Covenant on Economic, Social and Cultural Rights (ICESCR), which provides that states parties shall "recognize the right of everyone to the enjoyment of just and favourable conditions of work" and requires parties to protect "children and young persons . . . from economic and social exploitation."230 The Convention on the Rights of the Child, which India ratified in 1992, obliges states to "recognize 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."231 The convention directs states to implement these protections through appropriate legislative, administrative, social, and educational measures and, in particular, to: "(a) provide for a minimum age or minimum ages for admissions to employment; (b) provide for appropriate regulation of the hours and conditions of employment; and (c) provide for appropriate penalties or other sanctions to ensure the effective enforcement of this article."232 States parties must also "take all appropriate . . . measures to prevent the abduction, the sale of or traffic in children for any purpose or in any form" and "protect the child against all other forms of exploitation prejudicial to any aspects of the child's welfare."233
Discrimination against members of scheduled castes and scheduled tribes is prohibited by the International Convention on the Elimination of All Forms of Racial Discrimination, to which India is a party.234 Article 5 of the convention provides that states parties shall prohibit and eliminate all forms of discrimination in, and guarantee the right of everyone to equality before the law in the enjoyment of "[t]he rights to work, to free choice of employment, to just and favourable conditions of work, to protection against unemployment, to equal pay for equal work, to just and favourable remuneration." Article 6 provides that states parties shall "assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from such tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination."
The convention's monitoring body, the Committee on the Elimination of Racial Discrimination, affirmed in 1996 that "the situation of Scheduled Castes and Scheduled Tribes" falls within the convention's scope.235 In August 2002, the Committee recognized caste-based discrimination as a form of descent-based discrimination and strongly condemned its practice as a direct violation of the Convention on the Elimination of all Forms of Racial Discrimination.236 It further recommended that states parties adopt legislative and constitutional measures that would prohibit all forms of descent-based discrimination while ensuring measures to achieve internationally guaranteed rights for affected communities.
The right to education is set forth in the Universal Declaration of Human Rights, the ICESCR, and the Convention on the Rights of the Child.237 Each of these documents specifies that primary education must be "compulsory and available free to all." Secondary education, including vocational education, must be "available and accessible to every child," with the progressive introduction of free secondary education.238 The Convention on the Rights of the Child further specifies that states must "make educational and vocational information and guidance available and accessible to all children" and "take measures to encourage regular attendance and the reduction of drop-out rates."239
The U.N. Committee on Economic, Social, and Cultural Rights has interpreted what is required to fulfill the right to education in a General Comment on article 13 of the ICESCR.240 According to the committee, educational institutions must be both available in sufficient quantity and physically accessible, that is, "within safe physical reach, either by attendance at some reasonably convenient geographic location (e.g. a neighbourhood school) or via modern technology (e.g. access to a `distance learning' programme)."241
Because different states have different levels of resources, international law does not mandate exactly what kind of education must be provided, beyond certain minimum standards. Accordingly, the right to education is considered a "progressive right": by becoming party to the international agreements, a state agrees "to take steps . . . to the maximum of its available resources" to the full realization of the right to education.242 But although the right to education is a right of progressive implementation, the prohibition on discrimination is not. The Committee on Economic, Social and Cultural Rights has stated: "The prohibition against discrimination enshrined in article 2 (2) of the [International Covenant on Economic, Social and Cultural Rights] is subject to neither progressive realization nor the availability of resources; it applies fully and immediately to all aspects of education and encompasses all internationally prohibited grounds of discrimination."243 Thus, regardless of its resources, the state must provide education "on the basis of equal opportunity," "without discrimination of any kind irrespective of the child's race, colour, sex, language, religion, political or other opinion, national ethnic or social origin, property, disability, birth or other status."244
In addition, under the Indian Penal Code, rape, extortion, causing grievous hurt, assault, kidnapping, abduction, wrongful confinement, buying or disposing of people as slaves, and unlawful compulsory labor are criminal offenses, punishable by up to ten years' imprisonment and fines. Under the Juvenile Justice Act, cruelty to juveniles and withholding the earnings of a juvenile are criminal offenses, punishable with up to three years' imprisonment and fines.
All of the practices described in this report constitute debt bondage and violate the Bonded Labour System (Abolition) Act, 1976, and the Children (Pledging of Labour) Act, 1933. This is true even in the rare instances where no advance has been taken against the child; the Bonded Labour System (Abolition) Act, 1976, includes within its ambit work for "nominal wages," defined by the Supreme Court as wages less than the minimum wage.245 The bondage of Dalit children, the vast majority of those bonded, also violates the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.
In 1997 the Supreme Court in Union for Civil Liberties (PUCL) v. State of Tamil Nadu directed the National Human Rights Commission (NHRC) to supervise the implementation of the Bonded Labour System (Abolition) Act, 1976, and progress made by state governments in light of the Court's orders, and ordered relevant authorities to comply with the NHRC's directives.248
The use of bonded labor also contravenes various constitutional provisions. Article 21 of the constitution guarantees the rights to life and liberty, which include, according to the Supreme Court, the right of free movement; the right to eat, sleep, and work when one pleases; the right to be free from inhuman and degrading treatment; the right to integrity and dignity of the person; the right to the benefits of protective labor legislation; and the right to speedy justice.249 Article 23(1) of the constitution prohibits the practice of begar and other similar forms of forced labor and makes contravention of the article an offense punishable by law. Begar is an ancient caste-based obligation, "a form of forced labour under which a person is compelled to work without receiving any remuneration."250 Forced labor, according to the Supreme Court, includes any situation "where a person provides labour or service to another for remuneration which is less than minimum wage . . . ."251 The Supreme Court subsequently held in 1984 that the constitution requires bonded laborers to "be identified and released and on release, they must be suitably rehabilitated."252
In addition, the Children (Pledging of Labour) Act, 1933, which is rarely used, calls for penalties to be levied against any parent, middleman, or employer involved in making or executing a pledge of a child's labor, with the exception of agreements made in consideration of reasonable wages and terminable at seven days' or fewer notice. The penalties for violating this law are a Rs. 50 (U.S.$1.04) fine against the parents and Rs. 200 ($4.17) fine against the middleman or employer.253
Article 17 of the constitution abolishes the practice of "untouchability" and punishes the enforcement of any disability arising out of the practice. Article 21 guarantees the right to life and liberty. The Indian Supreme Court has interpreted this right to include the right to be free from degrading and inhuman treatment, the right to integrity and dignity of the person, and the right to speedy justice.254 Article 46 comprises both development and regulatory aspects and stipulates that: "The State shall promote with special care the educational and economic interests of the weaker sections of the people, and in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and forms of exploitation." As the article falls under the category of directive principles and not fundamental rights, it cannot be enforced by the state's courts. Article 15(4) empowers the state to make any special provisions for the advancement of any socially and educationally backward classes of citizens, or for scheduled castes and scheduled tribes.255
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, defines any kind of forced labor, including bonded labor, as an "atrocity" if the victim is a member of a scheduled caste or tribe. Committing an atrocity is punishable with up to five years' imprisonment and a fine.0
Unfortunately, as Human Rights Watch has extensively documented, these protections are rarely implemented.1
The Indian Constitution in article 24 also prohibits the employment of children under age fourteen in factories, mines, and other hazardous occupations. This provision is considered one of India's constitutionally-proclaimed fundamental rights. In addition, article 39 provides:
A plethora of national laws regulate or prohibit various forms of child labor. The most significant is the Child Labour (Prohibition & Regulation) Act, 1986, which prohibits the employment of children under age fourteen in thirteen occupations and fifty-seven processes, including cloth printing, dying, and weaving and, as of 1999, sericulture processing and zari (gold thread) making.3 The act also regulates the working conditions of children in legal occupations. Thus, children in occupations not designated as hazardous, such as mulberry cultivation and other agricultural work, are limited in the number of hours and days per week they may work. The law does not apply to children working for their immediate families (parents or siblings) or in schools that the government has established, financed, or recognized.4 Violators are subject to three months to one year of imprisonment and a Rs. 10,000 to 20,000 (U.S.$208 to $417) fine.5
Although the Child Labour (Prohibition & Regulation) Act, 1986, unlike the bonded labor law, does not require rehabilitation, in 1996 the Supreme Court issued a groundbreaking decision outlining a framework for removing children from hazardous work, punishing employers, and rehabilitating the children. As already outlined in this report, in M.C. Mehta v. State of Tamil Nadu & Ors., the Court, finding continued use of child labor prohibited by the Child Labour (Prohibition & Regulation) Act, 1986, ordered inspectors to identify children illegally employed, to immediately fine employers Rs. 20,000 (U.S.$417) per child, and to deposit this money in a "Child Labour Rehabilitation-cum-Welfare Fund," the income on which can only be used for the child concerned.6 Where the child is employed in a factory, mine, or other hazardous work, the Court ordered the state to employ an adult family member in lieu of the child or, where this is not possible, to deposit an additional Rs. 5,000 (U.S.$104) into the fund on the condition that the child be withdrawn from his or her job and sent to school.7 Parents should then receive the income on the Rs. 25,000 (U.S.$521) for as long as they continue to send the child to school.8 The Court charged the inspectors with ensuring that the children identified received free, compulsory education until age fourteen and charged the Ministry of Labour with monitoring the decision's implementation. The Court also called on the act's penal provisions to be used, and instructed states to conduct surveys to determine the extent of child labor in their territories.9
The Supreme Court further elaborated on this framework in 1997 in Bandhua Mukti Morcha, et al., v. Union of India and Ors., ordering states to "evolve steps" to provide:
In addition to or instead of the Child Labour (Prohibition & Regulation) Act, 1986, state labor inspectors also employ the Factories Act, 1948, which forbids the employment of children under age fourteen in factories and permits the employment of fourteen through seventeen-year-olds only with a doctor's certificate11 However, the act applies only to factories employing ten or more people with the use of electric or other forms of generated power, or twenty or more people without the use of power.12 Violators face up to two years in prison or up to Rs. 100,000 (U.S.$2,083) in fines.13
In addition, the Beedi and Cigar Workers (Conditions of Employment) Act, 1966; the Contract Labour (Regulation and Abolition) Act, 1970; the Mines Act, 1952; the Plantation Labour Act, 1951; the Motor Transport Workers Act, 1961; the Shops and Commercial Establishment Act, 1961; the Minimum Wages Act, 1948; the Apprentices Act, 1961; and the Merchant Shipping Act, 1958, each address child labor in some fashion.14 State laws also supplement these acts.
The Right to Education
226 Convention on the Suppression of Slave Trade and Slavery, signed at Geneva, September 25, 1926 (entered into force March 9, 1927, and ratified by India June 18, 1927); Protocol Amending the Slavery Convention, signed at Geneva, September 25, 1926, with annex, done at New York, December 7, 1953 (entered into force, December 7, 1953, and signed by India March 12, 1954); Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, adopted April 30, 1956, 266 U.N.T.S. 3 (entered into force April 30, 1957, and ratified by India June 23, 1960); ILO Convention No. 29 concerning Forced or Compulsory Labour, adopted June 28, 1930, as modified by the Final Articles Revision Convention, adopted October 9, 1946 (entered into force May 1, 1932, and ratified by India November 30, 1954); ILO Convention No. 105 concerning the Abolition of Forced Labour, adopted June 27, 1957 (entered into force January 17, 1959 and ratified by India May 18, 2000); International Covenant on Civil and Political Rights (ICCPR), arts. 8, 24, opened for signature December 16, 1966, 999 U.N.T.S. 171 (entered into force March 23, 1976, and ratified by India April 10, 1979).
229 ILO Convention No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, adopted June 17, 1999, 38 I.L.M. 1207 (entered into force November 19, 2000), art. 3(a), (d).
232 Ibid. In addition, ILO Convention No. 138 concerning the Minimum Age for Admission to Employment establishes fifteen as the minimum age for admission to employment and eighteen for any work "likely to jeopardise the health, safety or morals of young persons." ILO Convention No. 138 concerning the Minimum Age for Admission to Employment ("Minimum Age Convention"), adopted June 26, 1973 (entered into force June 19, 1976), arts. 2,3. The convention provides for certain exceptions to these age limits. India is not a party to this convention.
242 ICESCR, art. 2(1). See Convention on the Rights of the Child, art. 28. But see General Comment 13, The Right to Education, Committee on Economic, Social and Cultural Rights, para. 44: "The realization of the right to education over time, that is `progressively,' should not be interpreted as depriving States parties' obligations of all meaningful content. Progressive realization means that States parties have a specific and continuing obligation `to move as expeditiously and effectively as possible' towards the full realization of article 13"; General Comment 3, The Nature of States Parties Obligations, Committee on Economic, Social and Cultural Rights, 5th sess., (December 14, 1990), para. 2: "Such steps should be deliberate, concrete and targeted as clearly as possible towards meeting the obligations recognized in the Covenant."
243 General Comment 13, The Right to Education, Committee on Economic, Social and Cultural Rights, para. 31. See also General Comment 11, Plans of Action for Primary Education, Committee on Economic, Social and Cultural Rights, 20th sess., U.N. Doc. E/C.12/1999/4 (May 10, 1999), para. 10; General Comment 3, The Nature of States Parties Obligations, Committee on Economic, Social and Cultural Rights, para. 2 (stating that the obligation to guarantee the exercise of rights in the International Covenant on Economic, Social and Cultural Rights without discrimination is "of immediate effect").
244 Convention on the Rights of the Child, arts. 28(1), 2(1); ICESCR, arts. 2, 13. See also CEDAW, art. 10; Convention on the Elimination of All Forms of Racial Discrimination, art. 5. The Committee on Economic, Social, and Cultural Rights has interpreted the prohibition on discrimination and the right to education in article 2(2) and 13 of the ICESCR in accord with the 1960 Convention against Discrimination in Education. General Comment 13, The Right to Education, Committee on Economic, Social and Cultural Rights, paras. 31, 33, 34.
248 People's Union for Civil Liberties (PUCL) v. State of Tamil Nadu, et. al., W.P. No. 3922/1985 (order dated November 11, 1997). The NHRC set up a Central Action Group in August 1998, which soon became defunct, and then a seven-member group in October 2000 to prepare a report on bonded labor and make recommendations.
251 People's Union for Democratic Rights v. Union of India, 3 SCC 235 (1982), paras. 259-260. See also People's Union for Democratic Rights v. Union of India [Asiad Workers' Case], 2 SCC 494, AIR 1982 S.C. 1473 (1982), para. 1490 (holding that article 23 prohibits both paid and unpaid forced labor, so long as the worker's ongoing services to the employer contain the element of force or compulsion, including physical compulsion and compulsion under threat of legal sanction, for example an allegedly unpaid debt).
2 Article 32(2)(a) of the Convention on the Rights of the Child requires states to "provide for a minimum age or minimum ages for admissions to employment." When ratifying the Convention on the Rights of the Child, India made no reservation to the definition of a child and declared that it would "take measures to progressively implement the provision of article 32, particularly paragraph 2(a), in accordance with its national legislation and relevant international instruments to which it is a state party."
15 Article 45 of the Constitution of India reads: "The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years." See J.P. Unni Krishnan v. State of Andhra Pradesh, 1 SCC 645, Writ Pet. (C) No. 607 of 1992, February 4, 1993 (holding that the right to education enshrined in article 45 of the Constitution had acquired the status of a fundamental right).