Child labour in the Constituent Assembly
The 12th of June was observed as the ‘World Day Against Child Labour’. This article takes a close look at the Constituent Assembly of India’s engagement with child labour during the making of the Indian Constitution.
Article 24 of the Indian Constitution that prohibits the employment of children under the age of fourteen in factories, mines and other hazardous contexts. During the initial stages of Constitution-making, child labour was 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. Two things stand out about the manner in which the Constituent Assembly dealt with Article 24: a) there was little debate around child labour or the article itself 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 view 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 did not find traction and was not passed or debated.
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, unlike Article 17 and Article 23, the child labour provision does not have such a penal provision. The Constituent Assembly Debates around, and the texts of, Article 17 and 23, seem to suggest three criteria for a Fundamental Right to have a penal provision in its text; It 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 it’s very inclusion into the Fundamental Rights indicates that the Constituent Assembly viewed it as a social practice that needs to be wiped out. And yet, 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 that existed during the late 1940s did not consider child labour as a pressing social malaise as we do today. Further, it could also be the case that the economic predicament of India may have led to child labour being viewed as an economic necessity that the country had to live with, at least for a while.