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This article is written by Prateek Mudgal, Faculty of Law, Aligarh Muslim University. The article is socio-legal in nature and deals with Child labour and its prevention with reference to international conventions and Indian laws. The article also deals with the right to education in relation to child labour and different government policies surrounding the same.

Introduction

‘Chhotu’ get them a cup of tea! The phrase I hear the most, sitting in a Dhaba or a tea stall. And suddenly a seemingly undernourished adolescent boy, with tattered clothes covered in dirt, holding a few glasses with his small fingers dipped in the glass, but somehow, fearing the wrath of customers and owner, managing not to touch the tea with his small hands, hands darkened not by ink but grease and dirt. Every time I see them working with a strict ‘master’, who hurls tons of abusive slang, I wonder where our society is heading. According to 2002 estimates, there were around 246 million children working in different areas.

It is to be noted that the prActice of child labour is not limited to Dhabas and tea stall but also to various other industries which include hazardous work. It is really a disappointing sight to see a child with a wrench instead of a pen. International organizations, national governments, and various NGOs are working in collaboration to tackle this problem. Commenting on the progress and consequences of the steps taken by various institutions is a contentious matter. In this article I will highlight some of the key issues and various laws enActed to prevent this kind of exploitation and whether they are fulfilling their motives or not.

International conventions and child labour

It is important to take an overview of various conventions and international standards that have been set to protect the rights of children, specifically their right to education and relief from child labour. It must be noted that international conventions in itself contain a number of articles, therefore only a slight overview shall be given here:

Convention on rights of a child

Recalling the United Nations human rights declaration, in this convention (Convention on Rights of a Child) various Articles reiterate that childhood requires special care and assistance. It has to be noted that it is the most widely accepted convention with more than 96% worldwide states accepting the convention fully, or with certain exceptions. India is also the signatory of the convention. It contains a number of articles but a few articles deal specifically with education and a few others indirectly allude to child labour.

Article 28 of the convention directs state governments to look after educational matters of children. It directs the states to provide children with free and compulsory education, apart from this they must encourage the development of secondary education, and apart from this must look into financial assistance for those with the capacity of higher education.

Article 32 of the convention very explicitly emphasizes that the state has to play a role to protect children from any kind of economic exploitation and to protect that from working in hazardous conditions which may indirectly interfere with the education of children, or interfere with the moral, physical, mental or spiritual well being of an individual. Apart from this, it requires the government to mention the minimum age of employment, condition, and working hours.

Convention of International Labour Organisation

The worst form of child labour convention of ILO. Convention no. 182 of ILO defines various worst forms of child labour namely:

  • Slavery, debt bondage
  • Pornography, Prostitution
  • Forced recruitment of children in armed conflict
  • Use of children in Drug trafficking and other hazardous (to health) and illicit Activities

It has to be noted that different conventions of ILO aim for different objectives, for instance, this convention specifically deals with worst forms of child labour another important convention of ILO is discussed hereafter, apart from this it becomes important here that the convention has defined child to be anyone below the age of 18 years. Signatories of the convention have taken cognizance of the main objective of the convention, but as observable, the signatories have defined ‘child’ differently which is not always below 18 years.

The minimum age for employment: The Convention no. 138, 1973 of ILO aims specifically at the minimum age of employment. The convention contains several articles, but the gist and relevant points of minimum age convention are:

  • The minimum age for employment at work is 15 years, whereas if the work is light the minimum age maybe 13 years
  • The minimum age for hazardous work is 18 years, it may be 16 years under very strict conditions.
  • The conventions also provide that initially, the general minimum age may be 14 years and 12 years for light work, at places where the economical and educational development is insignificant.

United Nations guiding principle for business

These principles are called Ruggies Principles because they were made by professor Ruggie, and were endorsed by the United Nations in June 2011. These principles are a part of the concept of Corporate Social Responsibility. These principles are a  set of instructions to provide Corporates with guidelines that prevent human rights violations, and also to prohibit child labour. It is very important to note that the causes of child labour include a very significant portion of economical deprivation. The business sector can be considered a very important source to curb child labour in economic sectors. Apart from this, ILO in 2014 has decided to provide various companies with a rough framework, which if implemented and produce results shall be used as a sustainable business project.

Summary of Child Labour Act, 1986

Child Labour Act, 1986 is the specific Act for child labour in India. Due to the lack of a comprehensive law to address the issue of child labour more specifically, this Act was passed.

What was the need for such an Act

Before this Act, there were certain prohibitory Acts for children, below the age of 14 and 15 years in certain employments, but the information contained in those Acts was vague. It was not given in those Acts that in which employments, child labour is prohibited. 

There was no law before this Act, which could regulate the conditions of children working in different sectors, i.e there was no regulation for exploitative conditions as well.

Intention of  the bill

  • Bill was intended to ban the employment of those children who have not completed 14 years of age in certain employment.
  • Regulating the conditions of children working in occupations that have not been prohibited.
  • To provide penalties and punishments, whenever the Act is violated.

Analysis of the Bill

In the Act, a child is defined as an individual who has not yet completed 14 years of age. It must be noted, as mentioned above, though India is a signatory to the worst Form of child labour convention it still recognizes a child as someone below the age of 14 and not 18. This is an allowed exception and should be seen similarly and not as a violation of the convention.

Prohibited places

Employment sectors that are prohibited are mentioned in Part A of the schedule, and the process in which child employment is prohibited is mentioned in Part B of the schedule.

The Act also mentions in reference to MC Mehta vs. Union Of India, that children may be employed in the packaging process but it should be kept in mind that packaging takes place away from the manufacturing place, to avoid any mishap. 

These prohibitions are not applicable to the workshop, where the occupier works with the help of his family, or if it is a school established by government authorities.

Condition of work

The Act also put forth the details regarding work conditions at places where there are no prohibitions. 

Working hours 

  • Period of work on each day shall be fixed in such a way that no period shall exceed 3 hours of working time, it is also necessary to understand that no child shall be allowed to work for more than three hours until the child has taken rest of at least an hour.
  • Children shall not be allowed to work during the period between 7:00 pm and  8:00 am.
  • Children shall not be allowed or asked to work for more than six hours a day, this also includes one hour rest.
  • Permission to work overtime shall not be given to children. Apart from this no child shall be allowed to work at some other place, if the child has already worked at some other place for the day.
  • Children shall be allowed one holiday every week, which shall be notified by the establishment. The day of the holiday cannot be changed more than once in three months.

Health and Safety

The Act provides for better health conditions and health safety for children working in various establishments. This includes various heads, for instance, proper ventilation is required in the establishment, it should be free from dust and fumes, there should be proper drinking and sanitation facilities, proper lighting and proper disposal of waste.

Penalties

  • If someone allows or asks a child to work in the prohibited sector then the same person will be punished for a term of three months which may extend to a year or shall be fined with at least ten thousand rupees, which may extend to twenty thousand rupees or both.
  • On being convicted for the second time, the offender shall be punished for a term of six 
  • months which may extend to two years. Anyone who contravenes the following sections shall also be liable for similar punishments:

Amendment passed in 2016:

The 2016 Amendment has seen a few changes with which child labour is completely prohibited for children below 14 years, whether hazardous or not. They are only allowed to work in family enterprises after school hours or during vacation.

Section 3A, it is a new insertion which says that an adolescent is not allowed to work in a hazardous situation, but by notification of government, which specifies the nature of non-hazardous work, such work may be allowed.

Section 14 of 1986 was also changed, now it also includes penalty in contravention of Section 3A, which involves imprisonment for a term of at least six months and may extend to two years, or with fine of at least twenty thousand which may extend to fifty thousand rupees. 

These are the major changes from the legal perspective, other changes involve the reduction of the number of hazardous employment (which were previously considered) from 83 to 3. It is also to be noted that the Child Rehabilitation fund for those who are victims of child labour is provided. The penalty is also increased, penalty charges are added to the Child Rehabilitation Fund.

Challenges due to amendment

Firstly it must be noted that employment in family enterprises might alleviate the problem of exploitative practices, but it might prove to be a major blunder in dealing with their educational opportunities. By that, it means though it might improve the conditions at work, involvement in education will be reduced. Secondly, the reduction in the number of recognized hazardous employment has been reduced, it opens up the opportunity for the various hazardous industries to exploit children. I must not advocate any kind of idealistic Activism that has blatantly criticized the amendment, but it is imperative to mention that a few more major steps must be taken by the government to fill up the loop-holes that have been created. It must not be forgotten that child labour and the right to education both have their importance and inter-dependence and policymakers should be wary of the same fact. 

Right To Education (RTE Act)

Education is one solution to many problems. Education becomes very necessary if someone wishes to improve the situation of the society. Article 21A of the Constitution counts the right to education as a fundamental right. India, after enacting the RTE Act, became one of the 135 countries to recognize the right to education as a fundamental right. It is important to understand the main aim of RTE and how it is connected to child labour.  

The journey of becoming a fundamental right

Initially, the right to education was not considered a fundamental right but was mentioned in the Directive Principles of State Policy. Post-Independence India under Article 45 stated that it is the responsibility of the state to provide children, below the age of 6 years, with proper childhood care and education. It seems very outdated from today’s perspective, let’s take the view of a major case to understand the evolution of the right to education as a fundamental right.

Mohini Jain v. State of Karnataka

Issue

This case (1992 AIR 1858) is of great importance in the development of the Right to Education as a fundamental right. In this case, a medical student filed a petition in the Supreme Court challenging the higher fees charged by private institutions on students not admitted on government seats. The petition filed challenged the ‘Capitation Fee’. In this case, the question before the court was whether the constitution provides with ‘Right to education’, and if not then the question was whether the concept of capitation fee, in this case, was a breach of Article 14.

Observation

It was observed in this case, that though the constitution doesn’t, explicitly, mentions the Right to Education as a fundamental right but through Directive Principles and Preamble of the Constitution it becomes clear that the state is expected to provide education for its citizens and the state was directed to have right to education depending on its economic capacity.

Reasoning and Outcome 

It was reasoned by the court that for the Right to Dignity and Life, the right to education should be a constitutional right because only education can protect dignity which is in turn very necessary to protect the Right to Life. It was further reasoned that in various cases it has been seen that Life means a lot more than simple body and life, various necessities have been involved in the right to life. Apart from the above reason, the court explicitly mentioned that the Right to Dignity can only hold good when people are educated enough to understand the intricacies involved. Therefore in this judgment the court opined that the Right to Education shall be a fundamental right to provide one with a dignified life, which in turn protects Right to Life.

The court also held that access to education shall be the same for rich and poor, therefore in the above case if the government wishes to discharge the duties entitled to it though private institutions then an agency-relationship arises and thus making private institutions to follow the same rules and must not charge extra from students who are not allotted government seats.

The decision used in other cases

In Unni Krishnan vs State of Andhra Pradesh, (1993 AIR 217) it was held that the Right to Education necessarily flows from Right to Life. It was therefore held that the state is obliged to provide education to children below 14 years of age. In M.C. Mehta vs State of Tamil Nadu & Ors  ((1996) 6 SCC 756; AIR 1997 SC 699) supreme court recognized that, following the decision of the Constitutional bench of Unni Krishnan case, the Right to education under Article 45 is a fundamental right.

Article 21A 

Article 21A was inserted by the 86th amendment, in the Constitution of India. The RTE Act came into effect in 2010. The basic thing included in RTE is free and compulsory education. Free education means that no child shall be stopped from pursuing his studies if it is unable to pay the fees, with the exception that the child was admitted to a school by his guardians and the same is not maintained by an appropriate government. Compulsory education means that it is the responsibility of the appropriate government to ensure the admission and attendance of children between 6-14 years of age.

RTE Act overview

Apart from the above-mentioned points, the RTE Act also provides that:

  • It includes provisions for children to be admitted to the appropriate class if they are not admitted.
  • It lays norms for infrastructure, about the student to teacher ratio, building, and other things.
  • It provides well-trained teachers and they shall be fairly appointed.
  • Apart from this, the Act also provides that there should not be physical punishment and mental harassment of children, there should be a proper procedure for the admission of children. Capitation fees shall be prohibited and private tuition by the teacher. Schools without recognition shall not be run.

Various government programs/initiatives 

Padhe Bharat Badhe Bharat

Padhe Bharat Badhe Bharat is an appreciable effort by the government. Lack of interest and enthusiasm is also a factor that prevents students from pursuing higher education, therefore a stronger foundation becomes necessary to keep the interest and intellect of students intact. This program focuses especially on students from class 1st to 3rd. Teachers will pay specific attention to the improvement of writing, reading, and numerical abilities. Various Activities will also take place to robust the same. The Activity will include art, poster making, writing stories, etc. The Activity session will take place in November, though continuous efforts shall be made throughout the year to bolster the educational backbone.

Rashtriya Madhyamik Shiksha Abhiyan

Rashtriya Madhyamik Shiksha Abhiyan was a scheme launched in 2009-2010, the motive of the scheme was to increase the enrollment rate from around 60% in 2010 to 75% in the future. But due to incompetence, the only improvement till 2014 was getting an enrollment rate of 66.7% which was not a very healthy improvement in 4 years. But after 2014, the enrolment rate shot up to 75.16% in 2018. It is one of the most important schemes and has shown significant improvement in results.

Kasturba Gandhi Balika Vidyalaya

Kasturba Gandhi Balika Vidyalaya: Whenever one hears about child labour, usually a boy as a mechanic comes into mind. We very conveniently ignore the girls involved in various work that severely affects their education. It is no more a matter of contention that girls are exploited in various ways, and in such conditions ignoring the matter of their education creates more problems for them. Education is very important, it gives voice to your thought, therefore, the education of girls becomes more important. Girls usually leave education in their early years, because of various problems, work, and sometimes even due to parochial society. The scheme mentions providing education to the age group of 10-18 years. The classes of focus are 6th to 12th. This mentions targeted disadvantaged groups which include SC, ST, OBC, and BPL communities. Though its mention was necessary, such policies depict the incompetency and unscientific attitude of policymakers, which blatantly refuse to see the problems from a female’s point of view, thus, making policies from a sectarian perspective.

Education and child labour

A very weird phenomenon has been noticed by various researchers. Despite alleviation in poverty levels and dramatic economic growth, significant progress has not been seen in child labor data. Various researchers have now concluded that equal access to education can improve the situation. It is important to note that ‘equal’ accessibility provides poor and rich with equal.

Comparative study of child labour and schooling

It is often thought that poverty and child labour varies directly but it is not a very scientific approach to understand the problem. Due to inequality in income, child labour comes into existence. There is a certain amount of money that is to be spent on schooling and education. Families that find ‘that’ certain amount to be more than what they can bear, leave out the idea of schooling for their children. The economical reason is followed by a psychological myopic mindset, which provides the families with satisfaction. 

Apart from this, we must also note that economic improvement may not always prove to be a relief. For instance, with economic growth, if the wages increase then families will choose child labour with increased wages instead of schooling fees which might seem like a liability in the short run.

Therefore education, alone, cannot be a panacea, it might serve its own purpose but it alone cannot be considered the ‘Sanjeevni Booti’ for child labour. We have to understand the causal-relationship here, insufficiency in educated children is the consequence of child labour it must not be seen vice versa, though it might be a factor.

Prevention of child labour and promotion of schooling

The above-mentioned arguments will be unfruitful if I very casually mention education as the only cure to child labour, therefore I will try to be more rational and reasonable while discussing preventive methods:

  • There shall be targeted areas and in those targeted areas various measures shall be taken by the authorities to make sure for the livelihood of families, which have children engaged or there is a risk of such engagement, is looked after.
  • Mere educational facilities won’t suffice, there is a strong need for a very planned incentive system for children in primary education. The mid-day meal is one such measure, but it shall not be the only measure.
  • The main reason behind child labour being economical, therefore its solution must involve a financial boost.
  • The 6-hour education system undoubtedly trains you more than it educates, therefore it becomes clear that we can definitely reduce the schooling hours for such targeted primary schools with no loss but gain. 
  • Reduced school periods will provide children with more time. The more time can be utilized by giving part-time employment opportunities exclusively for children registered with the school,  the program shall be undertaken by the school authority itself. 
  • The above solution will have multiple benefits. Firstly, it will provide families with economic assistance, therefore they will readily send their children to school. This will fulfil our aim of a robust nation. Secondly, if the school authority is in charge then exploitative practice during employment can be checked.

Conclusion

Child labour is a very serious issue that cannot be ignored. Right to education is a very crucial matter in itself with the only condition that you don’t look at it with a myopic perspective. It has to be noted that both child labour and the right to education are interconnected the solution to the problem is, therefore, must be well thought as well. Various measures have been taken but I must reiterate that the economical factor is the most prominent. Education is not the panacea, but only a measure, therefore limiting all resources to only classroom education is not the solution, if we want to see a change we must channelize our thoughts. 

Ayurveda firstly finds the root cause of disease and then cures it, similarly, we must find root causes and work on them, this is the Indian way. Various policies which have been framed and which have to be framed shall be reviewed periodically, it becomes very necessary to update the policy with changing times. Various international conventions as mentioned has also played a very important role in dealing with the problem of child labour. Government Policies have also made a very significant difference, but it must be noted that any social reform comes from society.

Government and international organizations shall appeal, to bring about that understanding in society. Spreading awareness in a planned manner, therefore, becomes very necessary. I hope that we make sure that our future generation has equal opportunities so that next time when you or I visit a Dhaba we don’t find a Chhotu holding tea but a pen and copy.

References

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