Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

1. The Committee has noted the Government’s reports received in 2005 and 2006 together with its two replies to the communications received from the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) dated 31 August 2005. The Committee also notes the further communication of the ITUC dated 30 August 2007 which was forwarded to the Government on 17 September 2007, in order to afford it the opportunity to make comments on the matters raised therein.

Bonded labour and the need to identify the magnitude of the practice

2. The Committee has previously referred on many occasions to the urgent need for a comprehensive, large-scale national survey on bonded labour, using appropriate methodologies, in order to ascertain the scope and order of magnitude of the practice and of the efforts needed to identify, free, and rehabilitate workers who are exploited by it and to prosecute those who use it to exploit them. This issue is again a subject of the 2005 communication from the ICFTU referred to in paragraph 1 above.

3. The ICFTU in its 2005 communication on this topic, adverted to a number of matters including indications that:

–           according to the 2005 ILO report, “A global alliance against forced labour”, a commission set up in 1995 by the Supreme Court to investigate bonded labour cases in Tamil Nadu conducted a large-scale survey and concluded that, in that state alone, there were more than 1 million bonded labourers spread across 23 districts and 20 occupations;

–           while the Government has denied the existence of bonded child labour in the silk industry, a report by the Centre for Education and Communication (CEC), in conjunction with Anti-Slavery International, highlights a 1998 report by the Labour Commissioner indicating that 3,077 cases of child bonded labour were found in silk reeling units in areas of the Bangalore district of Karnataka;

–           the number of people identified by the Government since 1976 does not represent the total number of bonded labourers in the country. It again referred to the systematic survey on bonded labour conducted in 1978–79, the Ghandi Peace Foundation (GPF), and the National Labour Institute (NLI), an autonomous body of the Ministry of Labour, which estimated that 2.6 million bonded labourers were employed in agriculture alone.

4. The Committee notes the Government’s response in its 2006 report and the annex attached thereto, which indicated that:

–           as a result of government-funded local surveys, during the period 2000–01 to 2005–06, 15,111 bonded labourers were identified in 149 districts and all of them were rehabilitated;

–           the incidence of bonded labour, as reported from state governments, declined from 2,465 bonded labourers in 2003–04, to 866 in 2004–05, to 397 during the year 2005–06; this decline, according to the Government, is “a result of concerted efforts made by the Government through various anti-poverty programmes, awareness, sensitization, etc.”;

–           the Government considers that the figures quoted by the non-governmental agencies regarding incidence of bonded labour relied upon by the ICFTU are invalid, as they were not derived from the use of appropriate statistical tools for collecting primary data;

–           the Government reiterates that it does not consider it necessary to conduct a large-scale national survey on bonded labour, since the central Government already provides grants to the states to conduct district-wide surveys, and that a national survey is not possible to carry out because of the need to use qualitative methods for collecting appropriate data.

5. In relation to the need for a comprehensive national survey, the Committee notes the 2004–05 Annual Report of the National Human Rights Commission (NHRC) from its Internet site, indicating that, pursuant to the recommendations of its Expert Group on Bonded Labour, the commission has since 2003 conducted workshops for sensitizing and educating district magistrates, police superintendents, NGOs and other field officials involved in the implementation of the Bonded Labour System (Abolition) Act, 1976 (BLSA); that such workshops have “proved useful in identifying significant issues relating to identification, release and rehabilitation of bonded labour”; and that among the “important points” emerging from this process was the need for a “fresh, comprehensive survey to determine the magnitude of bonded labour”.

6. The Committee also notes from a news update dated 28 June 2007 and posted on the Internet site of the NHRC, that during a national workshop held on 28 June 2007 a former NHRC special rapporteur, who chaired a session on adequacy and effectiveness of administrative mechanisms, called for “effective surveys to identify bonded labour”.

7. The Committee once again urges the Government to undertake a large-scale national survey on bonded labour as a matter of priority, using valid and appropriate statistical methodologies, and requests that the Government supply information in its next report on the measures taken or envisaged towards this end.

Vigilance committees

8. The Committee in its previous observation requested that the Government continue to provide information on the vigilance committees (VCs) – the bodies constituted by state governments at district and subdivision levels pursuant to section 13 of the BLSA to, inter alia, advise district magistrates to ensure that the provisions of the BLSA are properly implemented, survey for the occurrence of bonded labour offences, monitor the number of such offences, and provide for the rehabilitation of freed bonded labourers – as well as to provide information on measures taken or contemplated to improve the effectiveness of the VCs in carrying out these activities.

9. The Committee has noted that the ICFTU, in its 2005 communication, referred to the 2001–02 Annual Report of the NHRC, which states that the VCs “were not in position in many places” and even where constituted “have become defunct over the years”, and that they “have not made worthwhile contributions anywhere in terms of the identification, release and rehabilitation of bonded labour”.

10. The Government in its 2006 report indicates that state governments have all confirmed the constitution of VCs, that “the meetings are being held regularly”, and that state governments are frequently requested to ensure that such committees are duly constituted or reconstituted. The Government, in reply to the ICFTU comments, stated in its 2005 report that “there might be a few instances when the VCs did not meet regularly (but) these instances cannot lead to a conclusion that (they) were not … delivering useful results”.

11. In relation to the operation of VCs, the Committee notes the following from the Annual Report 2004–05 of the NHRC, that:

–           in Rajasthan, the State Labour Committee on Bonded Labour was not meeting regularly and had held no meetings after 10 September 2001;

–           in Maharashtra, the VCs “are not meeting regularly and the detection of bonded labour is practically nil in the State”; and

–           in Punjab, there had been no reported detection of bonded labour since the previous review, and despite advice from the commission, the state government “does not seem interested in taking up the Awareness Generation Programme”.

12. The Committee further notes that the general recommendations which have evolved out of the series of sensitization and awareness-raising workshops conducted by the NHRC and referred to above, have included recommendations:

–           for a convergence of the work done by government agencies and NGOs;

–           for the constitution of district and subdivisional level VCs;

–           for the VCs to examine the status of already rehabilitated bonded labourers, to plan for rehabilitation of identified bonded labourers, and to monitor bonded labour-prone areas and industries; and

–           for the periodic review of VCs and their functions.

13. The Committee hopes that in its next report the Government will address itself to the shortcomings of the VCs in fulfilling their mandate under the BLSA, which are clearly evidenced by a preponderance of recent information from governmental and other sources, including that cited above, and that it comment on recommendations concerning the apparent need for other local institutions to assume the functions of the VCs.

Law enforcement

14. In its earlier comments, the Committee referred to the problem of law enforcement in connection with the eradication of bonded labour and sought information on the number of prosecutions, convictions and acquittals in various states under the BLSA and also questioned the adequacy of the penalties imposed. The Committee previously observed that, in the light of Article 25 of the Convention, the number of prosecutions launched under the Act did not appear to be adequate in relation to the number of identified and freed bonded labourers reported by the Government.

15. The Committee notes that the ICFTU in its 2005 communication referred to a finding by the NHRC reported in its Annual Report 2001–02 that, “the prosecution of offenders under the bonded labour system has, in fact, been neglected in every state reviewed”.

16. The Government in its 2005 report referred to section 21 of the BLSA, under which the power of judicial magistrates to try offences may be conferred upon executive magistrates, and stated that the Act “has enough penal provisions to deal with the issue of bonded labour”, and that the judiciary in India “is proactive in dealing with the issue of bonded labour”.

17. The Committee notes that the Government in its 2006 report states that, although exact information on the number of prosecutions launched for offences relating to bonded labour during the period under review was not available, according to statistics reported by state governments, there had been 5,893 prosecutions initiated; convictions obtained in 1,289 cases; and fines of 107 million rupees so far realized under the BLSA. The Government adds that the low rate of prosecutions could be explained, in part, by the existence in rural and informal sectors of society of an informal system of grievance and dispute resolution centred on village-level bodies, known as “Nyaya Panchayat” or “Lok Adalats”.

18. The Committee also notes the following findings of the NHRC published in its 2004–05 Annual Report:

–           in Uttar Pradesh, 55 bonded labourers were identified and freed in 2004–05, but the “prosecution aspect remains totally neglected”;

–           in Madhya Pradesh, a total of 22 criminal cases under the BLSA had been registered since 1999–2000 and 20 cases were pending trial, but the power of executive magistrates to try offences conferred under section 21 of the BLSA was being used “reluctantly”; and

–           in Jharkand, orders regarding the empowerment of executive magistrates to exercise powers of judicial magistrates under the BLSA had not yet been issued.

19. The Committee further notes from the 2004–05 Annual Report of the NHRC that among the “important points” emerging from the series of sensitization and awareness-raising workshops on bonded labour conducted by the commission since 2003 in association with the Ministry of Labour and Employment and concerned state governments, and referred to above, is the need for “prosecution of offending employers”.

20. The Committee hopes that in its next report the Government will provide comprehensive information about the practical workings of the village institutions referred to above, including:

–           detailed information about their geographic prevalence and detailed statistics, for every state, concerning the number of bonded labour complaints lodged with these bodies;

–           the number of bonded labour cases adjudicated through them; and

–           the outcomes of such cases.

The Committee also asks that in its next report the Government supply detailed information about measures it is taking or contemplating to address the serious and ongoing deficiencies in the prosecution of cases of bonded labour and, more generally, in the enforcement of the penalties and sanctions prescribed under Chapter VI of the BLSA, as well as information assessing the practical results of the ongoing sensitization and awareness-raising workshops conducted by the NHRC for law enforcement officials and members of the judiciary.

Release and rehabilitation

21. The Committee notes the indication in the 2005 observations of the ICFTU that significant problems exist in policies and programmes for the release and rehabilitation of bonded labourers, which include, among other things, corruption and bribery in the distribution of rehabilitation packages; discriminatory treatment in the provision of rehabilitation packages against bonded labourers identified by non-governmental organizations; and the failure of rehabilitation resources to provide economic security and sustained livelihoods to freed workers.

22. The Committee notes the reply of the Government in its 2005 report to the ICFTU comments in which it: indicated that efforts were being made to upgrade the skills of beneficiaries required in their previous occupations; referred to directions to state governments to dovetail rehabilitation packages with other poverty-alleviation programmes; and asserted that no case of relapse into bondage had been received from beneficiaries already rehabilitated.

23. The Committee also notes from a news update of the NHRC dated 28 June 2007 and referred to above, that in the course of a national workshop held on 28 June 2007, the secretary of the Ministry of Labour and Employment stated that “no data on the freed bonded labour is available and how their rehabilitation has taken place is still a question”, and that the secretary also called upon state officials to initiate projects so as to converge development schemes for the benefit of freed bonded labourers.

24. The Committee hopes that in its next report the Government will supply detailed information about the measures it refers to for upgrading the skills of freed bonded labourers and about its policy of integrating rehabilitation packages with other poverty-alleviation programmes, including information about the implementation and practical outcomes of these policies and programmes.

25. The Committee also requests that in its next report the Government provide detailed information about measures it is taking or contemplating to address the significant problems and shortcomings, exemplified in the reports discussed above, in the Government’s policies and programmes for the release and rehabilitation of identified bonded labourers.

Child labour

26. The Committee has previously raised a number of questions concerning efforts to eliminate child labour falling under the Convention (i.e. in conditions which are sufficiently hazardous or arduous that the work concerned cannot be considered voluntary). The Committee expressed the hope that the Government would redouble its efforts in this field, particularly with regard to the identification of working children and strengthening the law enforcement machinery, in order to eradicate the exploitation of children, especially in hazardous occupations; and it also requested the Government to supply the results of the latest census on the number of working children in the country.

27. The Committee notes the indications of the Government in its 2006 report, including the following statements:

–           based on census data from 2001 there are an estimated 12.63 million child labourers nationally in the age group 5–14, an increase from the estimate of 11.28 million based on the 1991 Census;

–           during the 10th Five-Year Plan (2002–07) the National Child Labour Projects (NCLPs) scheme for the rehabilitation of working children withdrawn from hazardous occupations, launched by the Ministry of Labour and Employment on 15 August 1994, was expanded in scope from 100 to 250 districts;

–           the central Government has increased the budget allocation for NCLPs from 2,500 million rupees under the previous plan to 6,670 million rupees under the current Five-Year Plan;

–           increased monitoring of government schemes for eliminating child labour has taken place at state and district levels.

28. The Committee notes with interest that the Child Labour (Prohibition and Regulation) Act, 1986 (CLPRA), was amended in October 2006, in order to extend the prohibition of employment of children to occupations involving employment in domestic service, hotels, motels, restaurants, road-side eateries, tea shops, resorts, and recreational centres.

29. The Committee requests that in its next report the Government supply information about the application and enforcement of the prohibitions under this amendment to the CLPRA.

30. The Committee notes, with regard to enforcement of the CLPRA, the statement of the Government in its 2006 report that it was “moving in the direction” of creating suitable enforcement machinery. The Committee, however, also notes the statistical data (as reported by state governments and the Organisation of the Chief Labour Commissioner) posted on the Internet site of the National Child Labour Project of the Ministry of Labour and Employment. This data include the following comparative statistics for the periods 2004–05 and 2002–03:

–           in 2004–05, 242,223 inspections were conducted and 16,632 violations were detected, whereas in 2002–03, 26,411 violations were detected;

–           in 2004–05, 2,609 prosecutions were launched compared to 9,159 in 2002‑03; and

–           in 2004–05, there were 1,385 convictions and 447 acquittals, in comparison to 4,013 convictions in 2002–03.

31. The Committee notes that there has been a steep drop in the detection of violations and initiation of prosecutions during 2004–05, when at the same time the estimates indicate a continuing increase in child labour. The Committee also notes that no data were reported on the nature of the sanctions or sentences imposed in cases where convictions were achieved.

32. The Committee asks the Government to provide information in its next report on the nature of sanctions or sentences received in relation to successful convictions, supplying copies of the court decisions (including those of the Supreme Court) concerning the work of children in hazardous occupations. The Committee also asks the Government to comment on the drop in the detection of violations and initiation of prosecutions during 2004–05 and also any explanation for the comparatively high rate of acquittals. Further, the Committee requests the Government to elaborate on what is meant by its assertion that the Government is committed to “moving in the direction” of creating suitable enforcement machinery.

33. The Committee notes two news releases of the Ministry of Labour and Employment dated 20 August 2007 and 22 August 2007, posted on the Internet site of the Government’s Public Information Bureau, indicating that the Ministry was now implementing its scheme of NCLPs in 250 districts in a total of 20 states. Under the scheme, these children were placed into special schools and provided with accelerated bridging education, vocational training, mid-day meals, stipends, and health check-up facilities. At present, 343,000 children were enrolled in the special schools and 457,000 children had already been mainstreamed into the formal education system since the scheme’s inception. An expansion of the scheme along with an enlargement of its scope through additional components during the 11th Five-Year Plan (2007–12) was under consideration. The programme covered children working in notified hazardous occupations in the agricultural sector, among others. In addition, a scheme of grants-in-aid to voluntary agencies for the benefit of children withdrawn from hazardous occupations was being implemented in other districts not covered by the NCLP scheme.

34. The Committee hopes that in its next report the Government will provide updated and detailed information about the implementation in all 20 states of the NCLPs scheme for rehabilitating child labour withdrawn from hazardous industries and about the status of plans to enlarge its scope under the next Five-Year Plan.

Prostitution and commercial sexual exploitation

35. In its earlier comments, the Committee welcomed the adoption of a National Plan of Action to combat trafficking and commercial sexual exploitation of women and children, among other positive measures taken by the Government, as well as the Government’s intention to review the existing legal framework including the Immoral Trafficking (Prevention) Act, the India Penal Code, the Criminal Procedure Code and the Evidence Act, with a view to making the punishment more stringent for traffickers but at the same time, more victim-friendly. The Committee also expressed the hope that measures would be taken to compile reliable statistics concerning the extent and magnitude of the problem of trafficking and commercial sexual exploitation in India, including the problem of child prostitution.

36. The Committee notes with interest the enactment of the Commissions for Protection of Child Rights Act, 2005 (CPCRA), referred to by the Government in its 2006 report. The Committee notes that the purpose of the Act is to provide for the constitution of a national commission and analogous state-level commissions “for providing speedy trial of offences against children”. The Committee notes some of the salient points of the CPCRA with respect to the functions and powers of the national commission, which include:

–           inquiring into violation of child rights and recommend initiation of proceedings in such cases (section 13(1)(c));

–           examining all factors that inhibit the enjoyment of rights of children such as trafficking and prostitution and to recommend appropriate remedial measures (section (13(1)(d));

–           inquiring into complaints relating to the deprivation and violation of child rights and take up such matters with appropriate authorities (section 13(1)(j));

–           forwarding any case to a magistrate, who shall hear the complaint against the accused as if it were forwarded under section 346 of the Code of Criminal Procedure (section 14(2));

–           where an inquiry discloses a violation “of a serious nature or contravention of provisions of any law”, recommending the initiation of proceedings for prosecution (section 15(i));

–           commissions constituted by state governments at the state level are accorded functions and powers analogous to those of the national commission (section 24).

37. The Committee notes the Government’s reference to proposed legislation, the draft Offences against Children Bill, 2006 (DOCB). The Government states that the DOCB seeks to improve deficiencies in the India Penal Code, which does not separately take cognizance of various offences against children, and that it specifically includes the offence of sexual exploitation of children and trafficking and provides for corresponding sanctions.

38. The Committee hopes that in its next report the Government will supply information concerning the practical application of the provisions of the Commissions for Protection of Child Rights Act, 2005 referred to above, as they relate to trafficking of children for purposes of commercial sexual exploitation or prostitution. The Committee hopes that the Government will soon enact the draft Offences against Children Bill and asks the Government to supply updated information on the prospects for such action.

39. The Committee also notes from the Internet site of the Parliament of India that the Immoral Traffic (Prevention) Amendment Bill, 2006 was introduced in the Lok Sabha in May 2006 and adopted by the Parliamentary Standing Committee on Human Resource Development in November 2006 and thereafter reported back to both Houses of Parliament. The Bill amends the Immoral Traffic (Prevention) Act 1956 (ITPA), which makes trafficking and sexual exploitation of persons for commercial purposes a punishable offence. Among other things, the Bill provides for more stringent punishment of offenders; deletes provisions relating to the prosecution of prostitutes for solicitation; defines the term “trafficking in persons” and punishes trafficking in persons, including children, for the purpose of prostitution; increases penalties for certain trafficking offences; and provides for the constitution of authorities at the central and state levels to combat trafficking.

40. Further, the Committee notes from a press release dated 20 August 2007, posted on the Internet site of the Government’s Press Information Bureau (PIB), that a pilot project on combating trafficking of women and children for sexual exploitation was being implemented; that a “Comprehensive Scheme for Prevention of Trafficking and Rescue, Rehabilitation and Reintegration of Victims of Trafficking and Commercial Sexual Exploitation” had been included in the Annual Plan, 2007–08; and that the Central Advisory Committee on Combating Child Prostitution, headed by the Secretary of the Ministry of Women and Child Development (WCD), was reviewing the States’ activities in combating trafficking and prostitution every quarter.

41. The Committee hopes that in its next report the Government will supply updated and detailed information on: the status of the Immoral Traffic (Prevention) Amendment Bill, 2006; on the progress in the implementation of pilot projects aimed at combating trafficking of women and children for commercial sexual exploitation; and on the work of the central advisory committees within relevant ministries in terms of measures to combat/prevent trafficking for commercial sexual exploitation and prostitution and to review states’ activities in this area.