Child Laborers or Educationally Deprived?

    “Education is the most powerful weapon which you can use to change the world.” – Nelson Mandela [1] Childhood, the earliest and nascent stage of man’s existence, is meant to be devoted, not to work, but to growth and development through education and training. Because of its nature and the conditions in which it takes place, the work done by any child often jeopardizes their chances of receiving education and opportunities to acquire skills for developing their earning potentials.

    Introduction

    Thus, when India became independent from British rule in 1947, the drafters of the Constitution, that strictly upholds and guarantees “social justice” and “equality of opportunity”, confronted the reality of a deeply poverty-stricken and overwhelmingly illiterate populace. To address this rising hindrance, to a newly independent and growing democracy, the Constitution under Article 45, a Directive Principle of State Policy (DPSP), as originally enacted, obliged the State to endeavour to provide free and compulsory education to all children within ten years of the adoption and enforcement of the Constitution.[2] Although not “enforceable by any Court”, this article was the only Directive Principle which had set out a time limit for ensuring its achievement, thereby indicating the kind of critical importance accorded to it by the framers of the Constitution.[3]

    Additionally, India, a founding member of the International Labour Organisation that came into existence in 1919, has been a permanent member of the ILO’s Governing Body since 1922.[4] Amongst others, India has ratified two core ILO Conventions, that fundamentally focus child labour issues, i.e., “Minimum Age Convention, 1973” and “Worst Forms of Child Labour Convention, 1999”[5], thereby accepting them as legally binding instruments, to bring national laws, pertaining to children, adolescents and young persons and their employment in factories, mines, hazardous and manufacturing processes, etc., in line with the  international standards, the most eminent of these being the “Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, amended in 2016 (Child Labour Act)”. Also, the enactment of the “Constitution (Eighty-sixth Amendment) Act, 2002” led to the insertion of Article 21A, a justiciable fundamental right, in these terms: “The State shall provide free and compulsory education to all children of the age of 6 to 14 years in such manner as the State may, by law, determine”. Additionally, it also amended Article 45 of the Constitution to state: “The State shall endeavour to provide early childhood care and education for all children until they complete the age of six years”. This indicates that the Parliament’s aim was to modify the element of justiciability of these articles, such that the “right to primary education” is retained as an absolute right, while also enabling the State to maintain flexibility in respect of its duty to secure early childhood care and primary education to its citizenry, which with respect to a largely populated country like India would require more than just ten years.

    Yet, the present scenario of child labour in the country speaks volumes about the unsuccessful implementation of the existing and amended laws, as at every street corner it is not very difficult to spot a child begging or working at an eating outlet or at a construction site. Although poverty remains the root cause behind child labour, the miserable conditions of the local public, education system and their near non-existing roles have heavily aggravated the already lamentable plight of child labourers. In fact, deficiencies in the public education system cause children to drop out early and join the labour force.[6] Thus, it becomes vital to emphasize on the need for a better public education system as it is the only access the poor have to education. It is clear that a cause and effect relationship between poverty and low schooling levels exists if one looks at the school participation of poorer sections of the population.[7]

     Right to Education- A Mere Neglected Legal Enactment ?

    Even after 71 years since its inception, implementation of the DPSP imposing upon the State the duty to provide free and compulsory education to children, much like the other policy guidelines in Part IV of the Constitution, has been appalling. While setting up a time limit of ten years for the effective implementation of this goal under Article 45 was in itself an unattainable goal, the maximum age for such compulsory education was limited to 14 years to bring it in consonance with Article 24 that prohibits employment of children below the same age. However, this rationale behind the minimum age of employment was met with criticism on the ground that children are weak and unfit for employment at this age, and that this age was higher in other countries.

    The Supreme Court first read the right to education into Article 21 of the Constitution in Mohini Jain v. Union of India[8]. However, it was in the light of J.P. Unnikrishnan v. State of Andhra Pradesh,[9] that the “Constitution (Eighty-sixth) Amendment Act, 2002”, introduced Article 21-A, which mandates the State to provide free and compulsory education to children between the ages of 6 and 14.[10] The reason for the incorporation of Article 21-A into Part III of the Constitution was to make explicit what is implicit in Article 21.[11] The “Right of Children to Free and Compulsory Education Act, 2009” (RTE Act) statutorily imposes the duty on the State to ensure that children working in violation of the Child Labour Act, are withdrawn from labour and are re-instated in schools. It also calls for the states to be proactive and ensure the removal of any impediment preventing a student from accessing education.

    While it is undisputed that RTE Act has better secured the fundamental right to education, the Act’s limited nature has been criticized on following grounds:

    (i)  The Act only covers children in the age group of six to fourteen years, as the objective of the Act is to ensure Free and Compulsory Education at elementary level, whereas the children entitled for pre-primary education are excluded. The absence of preschool education from RTE will pave the way for an unregulated system of preschool education, since a child’s mental faculties are at an important stage of development during that time.

    (ii)  The RTE Act in light of Article 21-A of the Constitution reveals that it addresses the quality as satisfactory and equitable in formal education which satisfies certain essential norms and standards. The RTE’s success in getting the child to the school is all right, but there are serious concerns about the quality of education which is reflected in learning outcomes.

    (iii)  In the recent past, there has been a mushrooming of private schools that are delivering results as per the expectations of parents. As a result, there is an increase in the percentage of children, who are going to these schools, whereas the trend is reversed in the case of the government schools.

    (iv) Under the RTE, there is sharing of funds between the central government and the state government. There is a significant shortfall of funds for the purpose of implementing the provisions under the Act. One of the problems for the effective implementation of the RTE Act is the lack of finance.

    (v)  The RTE led to amendment of Article 51A, which imposed on parents the obligation to educate their children between the ages of 6 to 14 years, is also criticized. Some critics contended that this was a way for the state to transfer its primary obligation to provide education to the parents, who are often too poor to be able to carry that burden. They saw this measure as further evidence of the abdication of the primary responsibility of the State.[12]

    (vi)   The Act is also criticized for not defining the terms ‘free’ and ‘compulsory’, and for being silent on the crucial issue of the quality of education that would be imparted to the children concerned. Pointing to recent measures initiated by the government toward lowering the salary of teachers, critics asserted that the absence of any quality safeguards was a serious lacuna in the Act.

    With regard to reinstating child labourers into the schooling system, under the National Child Labour Project (NCLP), a scheme initiated by the central government in 1988, it is vital to first introduce these children into special schools under this scheme in order to rehabilitate the working children, and to facilitate them to cope with the usual student-learning system before bringing them back or introducing them for the first time to the mainstream education system. Under this Scheme, the children in the age group of 9-14 years are to be withdrawn from work and put into NCLP Special Training Centres, where they are provided with bridge education, vocational training, mid-day meal, stipend, health care etc., before being mainstreamed into formal education system.  The children in the age group of 5-8 years are directly linked to the formal education system through a close coordination with the Sarva Shiksha Abhiyan, (National Campaign for Education for All), the national umbrella programme, introduced in 2000 to achieve universal primary education[13] and a dedicated online portal named PENCIL (Platform for Effective Enforcement for No Child Labour) to ensure the effective enforcement of the provisions of the Child Labour Act and smooth implementation of NCLP Scheme.[14]

    The Causal Factors of Child Labour in India

    The problem in estimating the number of child labourers in India is the lack of a working definition of both “child” and “labour”. Children working alongside their parents, even though they may be paid, and street children, such as beggars and prostitutes, are either underreported or not reported at all.[15] Children working as assistants to newspaper vendors, street-side hawkers, and shoe-polishers, or children enrolled in school, yet working part-time are also underreported. The past years’ census as well as numerous surveys remain ambiguous when it comes to providing accurate data of child labourers. Other factors, such as child homelessness, poor birth records, informal sector employment, and large refugee populations, are also causes of underreporting. Consequently, child labour has serious socio-economic effects. Firstly, it ensues detrimental impact on the physical and mental health of the child, by putting him or her at such places of work that endanger his or her lives. For instance, in the mica mines, children are forced to venture into deep and narrow trenches in search of the mineral, as they are smaller in size, and thereby due to their unfortunate circumstances, are forced to take up jobs that are not even safe for adult workers, just to earn a meagre living a day. Secondly, perceived as a novice in any work, they are often underpaid and are never informed nor offered the otherwise mandatory facilitative provisions of insurance, social security and other employment benefits. Thus, the employment of children becomes a competitive advantage for employers and even the whole industry. Finally, being engaged in long hours of work during most parts of the day prevents them from attending the routine classes of the common schooling system. Further, the lack of night or evening schools adds to their deprivation. This in turn, in the long run obstructs them from securing a job in the formal or organised sector that requires vocational training, and so, because of their poor circumstances and the unaccommodating education system, they are forced to toil for minor jobs throughout their lives, thereby creating an unending vicious cycle of helplessness. And when children are not engaged in long working hours, their regular attendance and class performance suffers due to drudgery and fatigue. The following cultural entrapments can be identified that cause child labour in India that include:

    (a) Population growth and sustained poverty go hand in hand. Unrelenting poverty that mandates, in the logic of the prisoners of such poverty, larger families for greater chances of economic survival, further enlarging the potential pool for exploitation.

    (b) The lack of opportunities in the countryside, forces mass rural populations to shift to the nearby urban cities, consequently forcing them to take up any job for their survival, and simultaneously causing the slow death of rural economies.

    (c) Arrival in overcrowded cities next paves way for misdeeds like alcoholism, bad companionship, prolonged unemployment, etc. that set the stage for the emergence of armies of street children, deprived of proper schooling, engaged in menial jobs, left to survive on their own, while being vulnerable to trafficking, abuse and exploitation.

    (d) Lack of effective enforcement of the right to free and compulsory elementary education, even where such rights exist under national laws and constitutions.

    (e) The long persistent discriminatory attitude towards the female child.

    https://legalreadings.com/an-overview-on-lay-off-retrenchment-and-closure/

    Criticisms Of The Child Labour (Prohibition & Regulation) Amendment Act, 2016

    The Child Labour Act, 2016 Act seeks to act as a harbinger of protection from exploitation, not only for children, but also for adolescents. The scheme of the Act distinguishes between “adolescent” and “children”, defining the former as persons whose ages range between 14 to 18 years, and defining the latter as persons whose ages range below 14 years, or such age as may be specified in the RTE Act, whichever is more.[16] While this amendment, enacted in consonance with the RTE Act, is certainly welcome, the 2016 Act however does not appear to have accounted for the provisions of the “Juvenile Justice (Care and Protection of Children) Act, 2015”, wherein the age of a child is defined as “below 18 years”. Similarly, India being a signatory to the “United Nations Convention on the Rights of the Child” (UNCRC) and duty-bound to be guided by it and implement the various provisions, the present Act should have taken children as mentioned in Article 1 of the UNCRC which says “a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier”. By retaining the age-limit of 14 years under the 1986 Act, the 2016 Act fails to streamline extant legal thresholds for determination of age of children, thus further obscuring the legal threshold with respect to this issue. Also, Section 3(2) of the Child Labour Act, which allows any labour undertaken by the child in pursuance of working in the family, family-based enterprises or the audio-visual industry, consequently, affects the school education of the child.[17]

    Moreover, the legislature has not come up with any statutory standard to evaluate the extent of the impact that labour has in a child’s life, particularly during his or her schooling years. Questions like who will be assigned with the duty to ascertain impairment of a child’s education, which age groups need to be given the most attention, where to begin with such assessment have not been addressed, let alone be answered. Furthermore, an important aspect that appears to have escaped the notice of the legislators is that these ostensibly child-friendly provisions can be misused to render some forms of child labour (for instance, in the entertainment industry) completely invisible. This may end up further marginalizing vulnerable children working in these sectors, who would then be faced with prospects of irregular school attendance, lower levels of learning and higher dropout rates. Thus, the exception only precipitates exclusion of the most disadvantaged children who need education, which is now their fundamental right under Article 21-A of the Constitution.[18]

    What Needs To Be Done ?

    Given the magnitude and complexity of the problem, effective collaborative efforts by the government and non-government agencies have become a need of the hour to formulate a wholesome, multifaceted and resolute effort to tackle this problem.

    Poverty Eradication Programmes:

    The combination of poverty and the lack of a social security to the poor make way for harsher forms of child labour. The existing system hardly has any provision to ensure accessibility of loans and other credit facilities to the poor, thereby forcing them to turn to moneylenders for any kind of financial help, thereby exposing them to bonded labour and other kinds of exploitation. There is a need to create and implement pro-poor, inclusive policies with strong political will.

    Lack of sufficient and access to facilities:

    Inadequate schooling infrastructure, unaffordable school fees often leaves children and their parents with no other option, but to put them to work. The attitudes of parents also play a key role in shaping the situation of child labour in the country. Parents who themselves did not receive any formal education feel it to be of no use, instead favour employing their child in the informal sub-urban sector for earning for their families. Thus, an extensive reform process is necessary to eliminate the proliferation of child labour in India which strives to end the desperate poverty in the nation.

    Campaign for strict implementation of Legislations:

    Social issues like child labour can be most effectively be tackled by NGOs and voluntary organisations, whose outreach goes beyond territorial boundaries, through intensive campaigns, by drawing the attention of the policy makers, implementators and the community at large.

    Budget Advocacy:

    There is a need to establish proper allocation of budget for children. Coordinated and collective effort from the NGOs and Civil Society Organizations strengthen the budget allocation for children. This process would provide a large operative space and public support to the child labour campaign, constitutional amendment to the constitution made the right to education as a fundamental right is an opportunity to strengthen the campaign.

    Community Action towards Child Education:

    Education and child labour are interlinked so to say, as while education helps a child to develop holistically, it is often gravely reduced by child labour. Creating awareness amongst parents regarding the crucial role education plays in a child’s developmental years is of utmost importance. Through training and capacity building of central caregivers, including parents, teachers, and community health workers, a diversity of programmes can enhance the community’s ability to provide education to children.

    Conclusion

    The welfare and development of any community depends largely on the health and well-being of its children. It has been said that “who holds the souls of children holds the nation”.[19] The physical and mental health of a nation is determined largely in the manner in which it is shaped in the early stages. The “Declaration of the Rights of the Child” which was unanimously adopted by the General Assembly of the United Nations on 20 November 1959, says that “Mankind owes to the child the best it has to give”. The “UN Convention on the Rights of the Child” adopted by the General Assembly of the United Nations on 20 November 1989 and ratified by 135 nations including India, lays down that “state parties recognise the right of the child to protection from economic exploitation and from performing any work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral and social development”.[20] Article 32 of the “UN Convention on the Rights of the Child, 1989” which has already been acceded to by the Government of India calls for elimination of child labour. The practical enforcement of the Child Labour Act, 1986 belies the expectations of law-makers. Despite the hope aroused by some improvement in the lot of bonded child workers, its enactment has not activated either the state or central government to any sort of purposive action. In the absence of an efficient and rigorous inspection machinery nothing prevents employers from flouting legal provisions in the full knowledge that child workers themselves will become willing accomplices in covering it up.[21] The Supreme Court of India, in M. C. Mehta v. State of Tamil Nadu,[22] would have done better service to the cause of children rights, had it made a provision for wages to be paid to child workers in match and fireworks industries at Sivakasi in Madras equal to or more than that paid to the adult workers. This would have forced the employers to think twice before employing a child worker, as often it can be found that there exists a cause and effect relationship between employment of child labour and subsequent high unemployment amongst the adults.

    Child labour is an unmitigated social evil, repugnant to modern conscience and dysfunctional to human and economic development. Affording financial support to parents who are willing to send their children to schools rather than their workplace, would provide larger encouragement to the society as a whole to view education as a necessary and affordable element in a child’s developmental years. Furthermore, such incentives would also protect such households from succumbing to complete starvation or loss of means of survival. Again the poverty alleviation programmes together with universalization of education and general change in attitude only can help in eradicating the long persisting evil of child labour.

    REFERENCES

    [1]  Arne Duncan, U.S. Secretary of Education “Education: The Most Powerful Weapon for Changing the World” US AID- From The American People (2013) available at: https://blog.usaid.gov/2013/04/education-the-most-powerful-weapon/ (accessed on October 05, 2020).  

    [2] The Constitution of India (prior to the constitutional amendment brought into force on April 1, 2010), art. 45- “The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.”, available at: https://www.india.gov.in/my-government/constitution-india/amendments/constitution-india-eighty-sixth-amendment-act-2002 (last visited on January 10, 2021).

    [3]  Vijayashri Sripati and Arun K. Thiruvengedam, “Constitutional amendment making the right to education a Fundamental Right” 2 International Journal of Constitutional Law 150 (2004).

    [4]International Labour Organisation, “ILO in India”, available at:  https://www.ilo.org/newdelhi/aboutus/WCMS_166809/lang–en/index.htm (last visited on January 14, 2021).  

    [5]Government of India, “India & ILO” (Ministry of Labour & Employment, 2019), available at:  https://labour.gov.in/lcandilasdivision/india-ilo (last visited on January 14, 2021).  

    [6] Shanta Sinha, “Emphasising Universal Principles towards Deepening of Democracy Actualizing Children’s Right to Education” Economic & Political Weekly Special Article (2005).

    [7]Subhadra Banda, Varshini Murali and Vidya Narayanaswamy, “Fourteen Years and Counting: Redefining Childhood (Perspectives on Child Labour and the Right to Education)” 4 NALSAR Student Law Review 13 (2008).

    [8]1992 AIR 1858.

    [9](1993) 1 SCC 645.

    [10]The Constitution (Eighty-sixth Amendment) Act, 2002, “Statement of Object and Reasons”, available at: indiacode.nic.in/coiweb/fullactL.asp? tfnm=86 (last visited on January 10, 2021).

    [11] Law Commission of India, “165th Report on Free and Compulsory Education for Children” (1997).

    [12]National Advisory Council, “The Right to Education and Challenges Beyond”, available at: nac.nic.in./concept%20papers/educationfebl8.pdf (last visited on January 09, 2021).

    [13]Government of India, “Millennium Development Goals- INDIA Country Report 2007” (Ministry of Statistics and Programme Implementation, 2021), available at: http://mospi.nic.in/publication/millennium-development-goals-india-country-report-2007 (last visited on January 09, 2021).

    [14]Government of India, “Press Information Bureau” (Ministry of Labour & Employment, 2019) available at: https://pib.gov.in/Pressreleaseshare.aspx?PRID=1593410 (last visited on January 09, 2021).

    [15]Ranjan K. Agarwal, “The Barefoot Lawyers: Prosecuting Child Labour in the Supreme Court of India” 21 Arizona Journal of International & Comparative Law 663 (2004).

    [16] The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, (amended in 2016), s.4.

    [17] Id. at Proviso to S. 3(2).

    [18]Aratrika Choudhuri, “Child Labour (Prohibition and Regulation) Amendment Act, 2016: Key Concerns and Issues” SCC OnLine Blog Op. Ed. 17 (2016).

    [19]Shriniwas Gupta, “Rights of Child and Child Labour: A Critical Study” 37 Journal of  the Indian Law Institute 531 (1995).

    [20]The United Nations Convention on Rights of the Child, 1989, art. 32.

    [21] Supra note 19.

    [22]AIR 1997 SC 699.


    BY SHRISTI DAS | SCHOOL OF LAW, KIIT UNIVERSITY

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