Night Work of Young Persons (Industry) Convention (Revised), 1948 (No. 90) - India (RATIFICATION: 1950)

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Articles 2(1) and 3(1) of the Convention. Period during which night work is prohibited for persons under 18 years. The Committee previously noted that section 11 of the Child Labour (Prohibition and Regulation) Amendment Act of 2016, (Child Labour Amendment Act) prohibits night work between 7 p.m. and 8 a.m. (which includes a period of 13 consecutive hours) to adolescents under 18 years of age and section 14(3) provides for penalties of imprisonment or fines for its violation.

In response to its previous comments concerning the application in practice of these provisions, the Committee notes the Government’s information in its report that the District Magistrate, who is conferred with the powers to ensure the enforcement of the Child Labour Amendment Act nominates District Nodal officers under his jurisdiction for exercising such powers. The Committee once again requests the Government to provide information on the application in practice of sections 11 and 14(3) of the Child Labour Amendment Act of 2016, indicating the number of violationsrelated to night work by children under 18 years of age detected by the District Nodal Officers and the penalties applied.

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Articles 2(1) and 3(1) of the Convention. Period during which night work is prohibited for persons under 18 years. In the comments it has been making for many years, the Committee has pointed out that section 70(1A) of the Factories Act, 1948 as amended in 1987, prohibits the night work of adolescents under 17 years of age between 7 p.m. and 6 a.m., that is for a period of 11 consecutive hours, which is inconsistent with Article 2(1) of the Convention. The Committee also observed that the period of night work of 12 consecutive hours is prohibited only to children under 15 years of age, pursuant to section 71(b) of the Factories Act and does not cover adolescents between 15 and 18 years of age. Noting with regret that, despite the request which it had repeatedly made for several years, no measures had been taken to give effect to the Convention on this point, the Committee urged the Government to take the necessary measures without delay to ensure that the Factories Act is amended in line with Articles 2(1) and 3(1) of the Convention.

The Committee notes the Government’s indication that the Child Labour (Prohibition and Regulation) Amendment Act of 2016, (Child Labour Amendment Act of 2016) which amended the Child Labour Prohibition and Regulation Act of 1986 (Child Labour Act of 1986) came into force on 1 September 2016. The Committee notes with satisfaction that the Child Labour Amendment Act of 2016 contains provisions prohibiting night work by children under the age of 18 years. Section 3(1) of the Child Labour Act of 1986 as amended by section 5 of the Child Labour Amendment Act of 2016 prohibits the employment of a child in any occupation or process and section 2(ii) of the Child Labour Act of 1986 as amended by section 48(a)(ii) of the Child Labour Amendment Act of 2016 defines a child as a person who has not completed his fourteenth year of age. Moreover, Section 7(4) of the Child Labour Act of 1986 as amended by section 11 of the Child Labour Amendment Act of 2016 states that no adolescent shall be permitted or required to work between 7 p.m. and 8 a.m., which includes a period of 13 consecutive hours. An “adolescent” is defined under section 4(a)(i) of the Child Labour Amendment Act of 2016 as a person who has completed his fourteenth year of age but has not completed his eighteenth year. The Committee further notes that according to section 14(3) of the Child Labour and Prohibition Act of 1986 whoever fails to comply with or contravenes any provisions of this Act shall be punished with simple imprisonment or a fine of up to ten thousand rupees (approximately US$150). The Committee requests the Government to provide information on the application in practice of the provisions related to night work of children under the age of 18 years contained in the Child Labour (Prohibition and Regulation) Amendment Act of 2016.

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Articles 2(1) and 3(1) of the Convention. Period during which night work is prohibited for persons under 18 years. In the comments it has been making for many years, the Committee has pointed out that section 70(1A) of the Factories Act, 1948 as amended in 1987, prohibits the night work of adolescents under 17 years of age between 7 p.m. and 6 a.m., that is for a period of 11 consecutive hours, which is inconsistent with Article 2(1) of the Convention.

The Committee notes the Government’s statement that in India, night work generally refers to working hours between 7 p.m and 6 a.m. It further states that the proposed amendment to section 70(1A) of the Factories Act is still under the consideration of the Government. The Committee notes that according to section 71(b) of the Factories Act, no child (who has not completed 15 years) shall be employed or permitted to work in any factory during the night. For the purposes of this section “night” shall mean a period of at least 12 consecutive hours including the interval between 10 p.m. and 6 a.m. It further notes section 70(2) of the Factories Act which states that an adolescent (person who has completed 15 years but not yet completed 18 years) who has not been granted a certificate of fitness to work as an adult shall be deemed to be a child for all the purposes of this Act. The Committee therefore observes that the period of night work of 12 consecutive hours is prohibited only to children under 15 years of age and does not cover adolescents under 18 years of age. The Committee recalls that Article 2(1) of the Convention, which defines the term “night” as a period of at least 12 consecutive hours read in conjunction with Article 3(1) of the Convention applies to both children and adolescents under the age of 18 years, irrespective of whether they hold a certificate of fitness to work as an adult or not. Noting with regret that, despite the request which it has repeatedly made for several years, no measures have been taken to give effect to the Convention on this point, the Committee urges the Government to take the necessary measures without delay to ensure that the Factories Act is amended in line with Articles 2(1) and 3(1) of the Convention.

Articles 3(2), 4(2) and 5. Exceptions to night work in case of apprenticeships or vocational training, in case of emergencies, and where the public interest demands it. The Committee had in its previous comments noted that according to section 70(1A) of the Factories Act, the state governments may vary the prescribed time limits and authorize exceptions in case of emergency where the national interest so demands. The Committee notes the Government’s statement that no provision in the Factories Act provides for exceptions to night work for the purpose of apprenticeship or vocational training. It also notes the Government’s indication that as per section 5 of the Factories Act, in case of a public emergency the state government may exempt any factory or class or description of factories from all or any of the provisions of this Act, except section 67 on the prohibition of employment of children under 14 years. The Government further states that no such exemption was granted in any of the states so far.

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The Committee notes the Government’s report.

In its previous comments, the Committee had noted the indications of the National Front of Indian Trade Unions (NFITU) that, while in the industrial undertakings, both private and public sectors, which are governed by the Factories Act, the Mines Act, the Plantations Act or similar legislation, the inspectorate supervises the implementation of the national legislation on night work of young persons, young persons working at night in the informal or unorganized sector, do not enjoy such safeguards. The Committee also noted the NFITU’s indication that in practice, deviations from the principles laid down in the Convention are widespread, particularly in tea plantations, fisheries and domestic work. The Government indicates that the main legislation covering regulation of employment and conditions of service like working hours, holidays, etc. of workers in the unorganized sectors are: the Minimum Wage Act, 1948; the Equal Remuneration Act, 1976; the Contract Labour (Regulation and Abolition) Act, 1970; the Inter-state Migrant Workers (Regulation of Employment and Condition of Service (RECS)) Act, 1979; and the Building and Other Construction Workers (RECS) Act, 1996. The Committee also notes the Government’s indication that, besides the abovementioned laws, various welfare and development schemes and programmes are being implemented for protecting workers in the unorganized sector. The Government adds that night work in shops and commercial establishments are prohibited under the Shops and Establishments Act, 1954, and that the Beedi and Cigar Workers (Conditions of Employment) Act, 1996, prohibit the employment of young persons at night. The Committee observes that according to Article 1 of the Convention the term “industrial undertaking” includes particularly: (a) mines, quarries and other works for the extraction of minerals from the earth; (b) undertakings in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed, including undertakings engaged in the shipbuilding or in the generation, transformation or transmission of electricity or motive power of any kind; (c) undertakings engaged in building and civil engineering work, including construction, repair, maintenance, alteration and demolition work; (d) undertakings engaged in the transport of passengers or goods by road or rail, including the handling of goods at docks, quays, wharves, warehouses or airports. In this regard, it notes that the national legislation prohibits the night work of young persons in industrial undertakings both in the public and private sectors. The Committee further notes that the inspectorate supervises the implementation of the national legislation on night work of young persons in industrial undertakings.

Article 2, paragraphs 1 and 2, of the Convention. In its report, the Government states that the proposal for amending section 70(1A) of the Factories Act, 1948, pertaining to night period is still under examination by the Government. In the comments it has been making for many years, the Committee has noted that section 70(1A) of the Factories Act, 1948, as amended in 1987, prohibits the night work of adolescents under 17 years of age between 7 p.m. and 6 a.m., that is for a period of 11 consecutive hours. The Committee recalls that in Article 2, paragraph 1, of the Convention, the term “night” signifies a period of at least 12 consecutive hours. The Committee trusts that the Government will take the necessary steps to bring the law into conformity with the Convention on this point.

Article 3, paragraph 2, Article 4, paragraph 2, and Article 5. In its previous comments, the Committee also noted that, under section 70(1A) of the Factories Act, 1948, state governments may vary the prescribed time limits and authorize exemptions in case of emergency where the national interest so demands. The Committee trusts that the Government will take the necessary measures to bring the legislation into line with Article 3, paragraph 2 (concerning children over the age of 15 years in the case of apprenticeships or vocational training in enterprises where work has to be carried out continuously), Article 4,
paragraph 2 (concerning young persons over 15 years of age in the case of emergencies which interfere with the normal working of the undertaking), and Article 5 (concerning children over 15 years of age in exceptional circumstances where the public interest demands it) on this point.

The Committee notes with regret that, despite repeated requests by the Committee, the Government has still not taken legislative measures to give effect to the above provisions of the Convention. It expresses the firm hope that the Government will take the necessary legislative measures in the near future to apply the above provisions of the Convention and requests it to inform it of any developments in this regard.

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The Committee notes the information supplied by the Government in its report.

The Committee also takes note of the comments made by the National Front of Indian Trade Unions (NFITU). It notes in particular the information that, in the industrial undertakings in both the private and public sectors which are governed by the Factories Act, the Mines Act, the Plantations Act or similar legislation, the inspectorate supervises implementation of the national legislation on night work of young persons. In the informal or unorganized sector, however, young persons working at night do not enjoy the same safeguards. Furthermore, most of the population of India live in rural areas where the workers are not organized and are obviously not protected. In its comments the NFITU states that, in practice, deviations from the principles laid down in the Convention are widespread, particularly in the following sectors: tea plantations, fisheries and domestic work.

The Committee hopes that the Government will send its comments on the observations made by the NFITU. It urges the Government to take all necessary measures effectively to prohibit the night work of children in the abovementioned sectors and in any other sector facing the same problem. It also asks the Government to take all necessary steps to ensure that inspection in the informal sector is as diligent as in industries covered by the legislation, to ensure that the Convention is applied in all sectors of activity.

Article 2, paragraphs 1 and 2, of the Convention.  In the comments it has been making for many years, the Committee has noted that section 70(1A) of the Factories Act, 1948, as amended in 1987, prohibits the night work of adolescents under 17 years of age between 7 p.m. and 6 a.m., i.e. for a period of 11 consecutive hours. The Committee recalls that in Article 2, paragraph 1, of the Convention the term "night" signifies a period of at least 12 consecutive hours. The Committee trusts that the Government will take the necessary steps to bring the law into conformity with the Convention on this point.

Article 3, paragraph 2, Article 4, paragraph 2, and Article 5.  In its previous comments the Committee also noted that under section 70(1A) of the Factories Act, 1948, state governments may vary the prescribed time limits and authorize exemptions in case of emergency where the national interest so demands. The Committee trusts that the Government will take the necessary measures to bring the legislation into line with Article 3, paragraph 2 (concerning children over the age of 15 years in the case of apprenticeships or vocational training in enterprises where work has to be carried on continuously), Article 4, paragraph 2 (concerning young persons over 15 years of age in the case of emergencies which interfere with the normal working of the undertaking), and Article 5 (concerning children over 15 years of age in exceptional circumstances where the public interest demands it) on this point.

In its report the Government states that it takes note of the points made by the Committee. It also mentions that the Factories Act is currently being revised and that the proposals for amendment are ready for approval by the competent authorities. The Committee notes that the Government undertakes to inform the Office of any progress achieved in this respect in its next report. It hopes that the Government will make every effort, therefore, to bring the national legislation into harmony with the Convention.

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The Committee has for many years been noting that section 70(1A) of the Factories Act, 1948, as amended in 1987, prohibits the night work of adolescents under 17 years of age between 7 p.m. and 6 a.m., i.e. for a period of 11 consecutive hours. It asked the Government to indicate the measures taken to bring the Act into conformity with Article 2, paragraph 1, of the Convention, in which the term "night" signifies a period of at least 12 consecutive hours.

The Government states in its report that it takes note of the point made by the Committee and that it is examining the possibility of amending the Act to bring it into harmony with the Convention.

The Committee asks the Government to indicate the measures taken to bring the Factories Act, 1948, into line with Article 2, paragraph 1, of the Convention.

Exceptions: Article 3, paragraph 2, Article 4, paragraph 2, and Article 5. The Committee noted that, under section 70(1A) of the Factory Act, 1948, state governments may vary the prescribed time-limits and authorize exemptions in cases of emergency where the national interest so demands. It asked the Government to indicate the measures taken to bring the legislation into conformity with Article 3, paragraph 2 (referrable to young people of over 15 years in the case of apprenticeships or vocational training in enterprises where work has to be carried on continuously), Article 4, paragraph 2 (referrable to young persons of over 15 years in the case of emergencies which interfere with the normal working of the undertaking) and Article 5 (referrable to children of over 15 years in exceptional circumstances where the public interest demands it) on this point.

In its report the Government states that according to information furnished by the state governments, the provisions relating to variations of the prescribed time-limits and grant of exemptions relating to night work have not been made use of in the case of children.

The Committee asks the Government to indicate the measures taken or contemplated to bring the legislation into conformity with national practice and with the Convention on this point.

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The Committee notes that the Government's report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the following matters raised in its previous direct request:

1. Article 2 of the Convention. The Committee noted that, by virtue of section 70(1A) of the Factories Act, 1948, as amended in 1987, the night work of adolescents under the age of 17 years is prohibited between 7 p.m. and 6 a.m.

The Committee pointed out that, in accordance with this Article of the Convention, the term night signifies a period of at least 12 consecutive hours. It hoped that the necessary measures will be taken in the near future to bring the legislation into harmony with the provisions of the Convention on this point.

2. The Committee also noted, from the same section of the Act, that the State Government may vary the prescribed time-limits and grant exemptions in cases of emergency where the national interest demands it.

The Committee pointed out that the Convention only authorizes exemptions under the conditions set out in Articles 3, paragraph 2, 4, paragraph 2, and 5, and that in the cases set out in the latter two Articles the exemptions shall not apply to children below the age of 16 years.

The Committee requests the Government to indicate the measures that have been taken or are envisaged to bring the legislation into full conformity with the Convention. Please also indicate whether use has been made of the above provisions and, if so, for which industries, periods and regions.

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1. Article 2 of the Convention. The Committee notes that, by virtue of section 70(1A) of the Factories Act, 1948, as amended in 1987, the night work of adolescents under the age of 17 years is prohibited between 7 p.m. and 6 a.m.

The Committee points out that, in accordance with this Article of the Convention, the term night signifies a period of at least 12 consecutive hours. It hopes that the necessary measures will be taken in the near future to bring the legislation into harmony with the provisions of the Convention on this point.

2. The Committee also notes, from the same section of the Act, that the State Government may vary the prescribed time-limits and grant exemptions in cases of emergency where the national interest demands it.

The Committee points out that the Convention only authorises exemptions under the conditions set out in Articles 3, paragraph 2, 4, paragraph 2, and 5, and that in the cases set out in the latter two Articles the exemptions shall not apply to children below the age of 16 years.

The Committee requests the Government to indicate the measures that have been taken or are envisaged to bring the legislation into full conformity with the Convention. Please also indicate whether use has been made of the above provisions and, if so, for which industries, periods and regions.