Vol. 2(2) Mei 2018, pp. 299-311 FAKULTAS HUKUM UNIVERSITAS SYIAH KUALA ISSN : 2597-6885 (online)

THE PROTECTION OF

Dilla Yuliani Mahasiswa Fakultas Hukum Universitas Syiah Kuala Jl. Putroe Phang No. 1, Darussalam, Banda Aceh - 23111

Eka Kurniasari Dosen Fakultas Hukum Universitas Syiah Kuala Jl. Putroe Phang No. 1, Darussalam, Banda Aceh - 23111

Abstract - is a worldwide phenomenon but more focused is required on developing countries. India is a developing country with the second highest birth rate in the world after China. More than 200 million children in minimum age in the world that minors are forced into child labour and one of the countries with the largest child labour is India even in hazardous condition. As a federal state, should uphold child rights in the society. The purposes of this thesis are to study and to understand the implementation of the law that ban children under the age of 18 to work; to scrutinize about the constraints faced by The Government of The Republic of India in addressing child labour; and to explain the protection on the rights of child in India and in Indonesia in comparison. This research uses normative research. Normative research is legal research theory, which identify and conceptualize the way the law as norms, rules, regulations including academic paper, research report, dictionary, etc. The result shows that India was among the first nations to sign the MoU with The International Programme on the Elimination of Child Labour (IPECL) to help in combating child labour. Unfortunately, the concerned authorities are unable to combat the rising cases of child labour because of varied reasons. UNICEF and BCC reports that poverty is the big cause of child labour in India. The girl child labourer is particularly alarming due to gender discrimination in large part of the society and also the complex relationship between social and child labour linked to the caste system. The caste system has been an enormous influence on the social and economic development of India. The Government of India has introduced numerous policy initiatives to try to reduce the effects of caste upon children‟s life chances. It is suggested that in order to protect childrens in India, The Government of India is recommended to keep control and apply the law that ban children under minimum age to work and to prevent the scourge of child labour, the government of India should consistent and aware of the importances of respecting children‟s rights. Keywords: child, Protection, India

INTRODUCTION Indian law forbids children below the age of 18 working in mines and other hazardous industries, but many families living in extreme poverty rely on children to boost household income. It can be seen from what the Thomson Reuters Foundation and child protection group Bachpan Bachao Andolan (BBA) or Save the Childhood Movement found 20 mica- related deaths in June and 4 children were killed in July.1 Globalization is not entirely a new phenomenon, but it has become very controversial. To some, it is the solution to the world‟s problems; to others, it is the cause of the problems. Some parties attribute everything good to globalizations; others say it is a disaster for many countries. There is evidence to suggest that as a result of globalization, the rich of the world are getting richer and the poor poorer.2

1Blood Mica: Deaths of child workers in India‟s mica „ghost‟ mines covered up to keep industry alive. News from: Fox News (foxnews.com). Published: 2016 Aug, 3. Accessed on 2016 August, 18 at 15.00 o‟clock. 2Maimunah Aminuddin, Essentials of employment & industrial relations, Perpustakaan University Malaya, Kuala Lumpur, 2009. Accessed on 2016 November, 22 at 14.27 o‟clock. 299 JIM Bidang Hukum Kenegaraan : Vol. 2, No.2 Mei 2018 300 Dilla Yuliani, Eka Kurniasari

Child labour is a worldwide phenomenon but more focus is required on developing countries.3India is a developing country with the second highest birth rate in the world after China. The United Nations also believe that India will be designated China as a country that has the world's densest population around 2028.4 But whether the children who will be born in India will get a beautiful childhood? The answer, seems not. More than 200 million children in the world that minors are forced into child labor and one of the countries with the largest child labor is India.5 UNICEF estimates that India with a larger population, has the highest number of workers in the world under the age of 14 years.6 The 2001 national cencus of India estimated total number of child labour aged 5-14 to be at 12.6 million.7 Small-scale and community- based studies have found estimated prevalence of 12.6 million children engaged in hazardous occupations.8 Between boys and girls, UNICEF finds girls are two times more likely to be out of school and working in a domestic role. Parents with limited resources have to choose whose school costs and fees they can afford when a school is available. Educating girls tends to be a lower priority across the world, including India. Girls are also harassed or bullied at schools, sidelined by prejudice or poor curricula. Solely by virtue of their gender, therefore, many girls are kept from school or drop out, then provide child labour.9 There are several factors why workers minors rampant in India, one of the reason is that many companies or job seekers who want someone who works in place of workers that willing to accept low wages. Thus many families, especially those in developing countries need extra income or cannot afford to send their children to school, so they send them to

3Surendra Kumar Yadav and GowriSengupta, “Environmental and Occupational Health Problems of Child Labour: Some Issues and Challenges for Future”, Department of Environment Management, Institute of Environment Management & Plant Sciences, Vikram University, Ujjain, , India, Department of Community Medicine, Vardhaman Medical College, Safdurjung Hospital Campus, New , India, 2009. Accessed on 2016 November, 24 at 11.50 o‟clock. 4 2028, Populasi India Terpadat di Dunia. News from SuratKabarSuaraPembaruan. Published: 2013 June. 17. Accessedon 2016 August , 18 at 17:00 o‟clock. (has been translated). 5 CHILD Protection & Child Rights >> Vulnerable Children >> Children‟s Issues >> Child Labour in India. News from: Child Line India Foundation (childlineindia.org.in) Accessed on 2016 August, 18 at 18.13 o‟clock. 6Karin Hulshof, Representative Unicef India, The Situation of Children in India. A Profile. News from: .org. Accessed on 2016 August, 18, at 19.00 o‟clock. 7Basu K, Tzannatos Z. The Global Child Labor Problem: What Do We Know and What Can We Do? World Bank Econ Rev.2003;17:147-73. Accessed on 2016 November, 24 at 7.50 o‟clock. 8Angnihotram RV. An overview of occupational health research in India. India Journal of Occupational Environ Med. 2005;9:10-4. Accessed on 2016 November, 24 at 7:56 o‟clock. 9 Child Labour& Protection, News from: The Child Health Foundation (thechildhealth.org) Accessed on 2016 August, 19, at 06.30 o‟clock

JIM Bidang Hukum Kenegaraan : Vol. 2, No.2 Mei 2018 301 Dilla Yuliani, Eka Kurniasari work.10 In many cases, not only the economy but also need changed required in the attitude of society in India people itself to protect children in India.11 In the depths of India‟s illegal mica mines, where children as young as five work alongside adult, lurks a dark, hidden secret – the cover-up of child deaths with seven killed in the past of two months, a Thomson Reuters Foundation investigation revealed as follows: a) Investigation found children working in and around mica mines in northern Jharkhand, southern in eastern India and in in northwest. b) At least seven children reported killed in the past two months alone in mines. c) Mine operators and victims‟ families are covering up these deaths, not reporting them but accepting payments for fear of ending the illegal mining that brings much needed income to poor areas, according to campaigners and victims‟ families.12 In India there are many laws enacted to protect the rights of children. Supposedly regulation and protection by the government or the world against child labor should be seriously implemented. However, there are still exploitation on children happen.

RESEARCH METHODS 1. Operational Variable Research Definition In order to avoid matters that do not relate with scope of the thesis, there are several things need to be highlighted: a) Child is defined as a person below the age of 18, unless the laws of a particular country set the legal age for adulthood younger.13 b) Child Labour is defined as work that deprives children of their childhood, their potential and their dignity, and that is harmful to physical and mental development.14

10Sarita Bharti & Dr. Shalini Agarwal, “Physical & Psychological Hazards Faced by Child Labour – A Review Article”, Research Scholar, School for home sciences, BBAU, Lucknow&AssistantProfesor, School for home sciences, BBAU, Lucknow. Accessed on 2016 November, 24, at 05.55 o‟clock. 11 DW (Deutsche Welle) (News, information and analysis of German and European topics), “Biasa, PelanggaranHakAnak di India”, 2009 October, 06. Accessed on 2016 November, 24 at 7.23 o‟clock. (has been translated) 12 Child labour being murdered in mica mines all over India. News from: Economic Times (economictimes.com) Updated: 2016 August,3. Accessed on 2016 November 27 at 23.33 o‟clock. 13 The Convention on The Rights of The Child (Definition of the child (Article 1) (unicef.org) 14 What is child labour (ilo.org)

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c) Hazardous condition is defined as work in dangerous or unhealthy conditions that could result in a child being killed, or injured and/or made ill as a consequence of poor safety and health standards and working arrangements.15 2. Type and Research Approach This research uses normative legal research. Normative legal research stage through the study of literature. Normative research is legal research theory, which identify and conceptualize the way the law as norms, rules, regulations including academic paper, research report, dictionary, etc. 3. Data Sources In order to compile data in the research, library research is applied to get secondary data, through reading, citing and analyzing data that are related to object of research. Sources of data in this research is obtained through library research covering: a) Primary data which consists law, include : 1) International Labour Organization (ILO) 2) The 1989 United Nations Convention on The Rights of The Child 3) India National Law, The Child Labour Act, 1986 4) India National Law, The Factories Act, 1948 5) India National Law, The Mines Act, 1952 b) Secondary data, include : 1) Law books 2) Law Journals 3) Law Papers c) Tertiary data include the material that support laws that provide instructions and explanations of the primary legal materials and secondary law, namely dictionary, legal dictionary, magazine, journals or newspapers along with information relevant to research materials. 4. Data Analysis Data obtained from the library research will be processed systematically to attain appropriate description with the research problems. The data subsequently will be analyzed by using qualitative approach so that it can be acquired objective analysis to answer problems raised.

15 International Labour Organization. ILOLEX database of International Labour Conventions.

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DISCUSSION A. Implementation of Legal Protection on The Rights of Child in India The issue related to child labour is a matter of great concern in almost all the nation. The exploitation of child on the basis of their incapableness is a serious problem. The reason might be the social-political and economic conditions of the particular society. The matter has not been taken seriously by the political leaders, to put an end to. A number of Policy Initiatives and programmes have been undertaken by Government of India with the objective of dealing with the problem of rapidly increasing number of child workers. The Government has been taking proactive steps to tackle this problem through strict enforcement of legislative provisions. State Governments which are the appropriate implementing authorities have been conducting regular inspections to detect the cases of violation. Major India National Legislations Are: 1. The Children (Pledging of Labour) Act 1933 was the first law against bonded labour. 2. Employment of Children act. 3. The Factories Act of 1948. 4. The Plantations Labor Act 1951. 5. The Mines Act of 1952. 6. The Motor Transport Workers Act 1961. 7. The Child Labour (Prohibition and Regulation Act). 8. The Juvenile Justice (Care and Protection) of Children Act of 2000. 9. The Right to Children for Free and Compulsory . 10. The Formulation of a new National Child Labour Policy. 11. The Enactment of the Child Labour (Prohibition and Regulation) Act. 12. The setting up of Taskforce on Child Labour. 13. The Adoption of Convention on the Rights of the Child. 14. Initiation of National child labour project (NCLP) in 1988 to rehabilitate working child labour in the endemic districts of the country.16 Although the obligation to protect child labour in hazardous work, the fact remains that there are still issues that obstruct the upholding and respecting of child

16 National Child Labour Project, Ministry of Labour and Employment, Government of India, 2014. Accessed on 2017 February, 28 at 21.13 o‟clock.

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labour rights. In its implementation in India, is still standing in front of a mighty hurdle and this is a common problem occuring in India. B. The constraints faced by The Government of The Republic of India in addressing child labour in India Defining social mobility in the Indian context is a particularly difficult exercise. As Max Weber reminds us in The Religion of India: The Sociology of Hinduism and Buddhism, castes are a special case of status groups. In contrast to the frequent cases where social honour is directly connected to class position, the notion of caste modifies the relationship between social status and class. 17 The system – the religious word for which is „Varna‟ – India is complicated but the ancient subdivisions are: 1. Brahmans, the priestly and learned class 2. Kshatriyas, the warriors and rulers 3. Vaisyas, farmers and merchants 4. Sudras, peasants and labourers Below these groups are the , or untouchables, who traditionally perform the most menial tasks.18 Caste is a social stratification system based on heredity and, within the caste group, members are restricted in their choice of occupation and social participation. Marriage outside of the caste is usually prohibited. Based on Hindu religious texts, it is found that the Manusmitri (The Law of Manu) legitimizes social exclusion and inequality as the guiding principle of social relations. Those from the lowest castes are told that their place in the caste hierarchy is due to their sins in a past life and the result has been a long history of discrimination against Dalits by the higher castes. The caste system has served the interests of the higher castes, which have resisted any reforms. The caste system has been an enormous influence on the social and economic development of India. Child Labour in India predominantly affects the lowest castes, in particular and Muslim children. They are often forced to work because of their family‟s marginalised status and lack of an alternatives. These groups are particularly vulnerable to being trafficked into

17 Max Weber, Hindouisme et Bouddhisme, translated and presented by Isabelle Kalinowski and Roland Lardinois, Paris, Flammarion, coll. Champs, 2003, p. 123. Accessed on 2017 February, 28 at 9.03 o‟clock. 18 New Internationalist Magazine, World Development book case study: the dalit minority in India, July 2005. Accessed on 2015 February, 28 at 07.29 o‟clock.

JIM Bidang Hukum Kenegaraan : Vol. 2, No.2 Mei 2018 305 Dilla Yuliani, Eka Kurniasari slavery, a road that becomes more open to children by allowing them to work “in their spare time”. Poverty and lack of social security are also the main causes or the constraints that faced by The Government of The Republic of India in addressing child labour in India. The increasing gap between the rich and the poor, privatization of basic services and the neo- liberal economic policies are causes major sections of the population out of employment and without basic needs. This adversely affects children more than any other group.

C. The protection on the right of child in India & Indonesia in comparison

After being observed to see the comparison between the law on child labor in India and in Indonesia, then the result is the same. Which is, a work that endangers childs condition, endangers child physically and mentally, interferes childs health, interferes child time to get their rights to learn, play and rest is strictly prohibited. Including in the circumstances of a child working in his family company. And the results obtained from the comparison of child laborers in India and in Indonesia are, the absence of hereditary cultures in Indonesia that let underage children work even in dangerous places even with the reason of helping the family economy. Even if there are not lack cases of underage child labor that help their family economy, it just happens, not because of inherited hereditary conditions. Besides the occurence of enculturation, there is also a very striking difference in India, namely the existence of society's social assessment of Hindu caste system. Where the caste in India greatly affects the value of one's person life while Indonesia almost does not have and apply that thing.

CONCLUSIONS Based on the description of the research results and discussions, it can be concluded that the issue of legal protection of child labour in India is giving birth to circumstances that have an appalling effect on children and its causes and potential remedies have receive considerable attention in academia and features prominently in the policy papers of pertinent institutions such as the United Nations and the World Bank.

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This research found that India applying system of life that depends on Hindu caste system thus causing enculturation. And that causes legal regulation in India related to protection of child labour is not implemented properly. It is common knowledge that culture in India is different from culture in Indonesia and this can be proved by Indonesia which almost dont have and apply enculturation while India apply it and their life depends on Hindu caste system.

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