Today, 12 June, is ‘World Day Against Child Labour’. This piece takes a look at how India’s constitutional history engaged with the problem of child labour particularly during the formal constitution-making process.
Among the historical constitutions, the Karachi Resolution 1931 was the first document that made mention of child labour: ‘6. Prohibition against employment of children of school going age in factories.’
15 years later, a provision prohibiting the employment of children began to appear in the initial sub-committee stages of India’s constitution-making process as a fundamental right. During this time, the child labour provision was part of another provision that prohibited forced labour (what later became Article 23). At the Advisory Committee stage, the child labour provision was carved out as a separate Article, which then made it way into the Draft Constitution of India 1948 as Article 18:
18. No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.
On 3 December 1948, the Constituent Assembly took up Draft Article 18. There was very little debate. The lack of substantial debate around a particular Article of the Constitution need not imply that that the Assembly members did not view the Article as important – no debate could indicate consensus. However, what seems clear is that the debates around issues related to forced labour seemed to dominate at the expense of child labour. In the end, Draft Article 18 became Article 24 of the Constitution of Indian 1950.
There another curious aspect to the Assembly’s engagement with the child labour provision. Among the fundamental rights, Article 17 (Untouchability) and Article 23 (Forced Labour) are unique in that they include a penal provision within their texts. Unlike other fundamental rights, the Constitution clearly puts an obligation on the state to treat the violations of Article 17 and Article 23 as criminal offences through legislation.
The debates around, and the texts of, Articles 17 and 23 suggest that the Assembly considered three criteria to decide if a fundamental right was a candidate to carry a penal provision in its text. The right had to be:
1. a horizontal right (a right that guarantees protection from other individuals rather than the state)
2. textually specific and
3. deal with a social practice that the Assembly wanted to eradicate
Article 24 seemed to satisfy all three criteria – it was a horizontal right, it was textually specific and it was a specific social practice that Assembly wanted to eradicate. And yet, puzzlingly, Article 24 does not contain a penal provision that criminalizes its violation.
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. It might be that the normative ambience of the late 1940s did not view child labour as pressing social malaise as we do today. Further, it could be the case that the economic predicament of India in the 1940s may have led to child labour being viewed as an economic necessity that the country had to live with, at least for a while.