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From: "Ashok" <socialjur@xxxxxxxxxxxxxxxx>
Subject: Article for publication, circulation, comments etc. Date: Wed, 4 May 2005 08:45:58 +0530
COMPULSORY SCHOOLING AND CHILD LABOUR
Ashok Agarwal, Advocate & Advisor, Social Jurist
Article 21 A has been incorporated in the chapter on fundamental rights of the Constitution of India in December 2002. This article makes right to free and compulsory education of every child in the age group of 6-14 years a fundamental right against the State. According to this article, the age of compulsory schooling for the first time has been constitutionally recognized as up to fourteen years. The core issue is whether article 21 A of the Constitution has brought any change in the legal status of the child labour.
The legal status of the child labour at the time of incorporation of article 21 A in the Constitution can be seen through the provisions of the Child Labour (Prohibition and Regulation) Act, 1986 (in short, Child Labour Act, 1986). The Child Labour Act, 1986 does not completely prohibit child labour in all forms. On the other hand, it permits children to work in all occupations and processes other than the hazardous one, that too, as set forth in Part A and Part B of the Schedule to the Act. However, it is pertinent to mention that the Delhi Shops and Establishments Act, 1954 completely prohibits child labour below the age of 12 years.
The factual situation of child labour in the country is very grim and unfortunate. It is estimated that about 10 crores children below the age of fourteen years are not attending full time formal school and are engaged in one or the other type of work. These children are nothing but child labour. The distinction between hazardous and non-hazardous work in relation to a child is bogus. The number of child labour is increasing day-by-day in spite of government's claim to the contrary.
The article 21 A of the Constitution guarantees every child a fundamental right to free and compulsory education up to the age of 14 years. Can a child realize this fundamental right to education, if he is simultaneously asked to continue as child labour? The child labour and right to education cannot go together. The article 21 A would become meaningless, if child labour in all forms is not completely prohibited, therefore, it is legitimate to read complete prohibition of child labour in all forms in article 21 A.
Contd. P/2
- : : 2 : : -
The minimum age standards for employment are linked to schooling. The ILO Minimum Age Convention, 1973 (No. 138), which built on the ten instruments, adopted before second world war, expresses this tradition by stating that the minimum age for entry into employment should not be less than the age of completion of compulsory schooling. By establishing such a link, the aim is to ensure that children's human capital is developed to its fullest potential, benefiting children themselves, their families and communities and society as a whole by the increased contribution they can, when grown, make to economic growth and social development.
The ILO Minimum Age Convention, 1973 (NO. 138) came into force on 19.06.1976. Article 1 of the said Convention provides that each member for which this Convention is in force undertakes to pursue a national policy designed to ensure the effective abolition of Child Labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons. Paragraph 2 of Article 2 provides that the minimum age shall not be less than the age of completion of compulsory schooling and in any case not less than 15 years. The paragraph 4 of Article 2 provides that notwithstanding the provisions of paragraph 3 of this Article, a Member whose economy and additional facilities are insufficiently developed may, after consultation with the organizations of employers and workers concerned, where such exist, initially specify a minimum of 14 years.
The UN Convention on the Rights of the Child was adopted by the General Assembly of the United Nations on 20 November 1989 and the Government of India acceded to this Convention on 11 December 1992. The Article 32 of the UN Convention on the Rights of the Child recognizes the right of the child to be protected from economic exploitation and from performing any work that is likely to be hazardous or to interfere with child's education, or to be harmful to the child's health or physical, mental, spiritual, moral or social development, etc. The provisions of Article 32 of the said Convention also provide that the state parties shall take legislative, administrative, social and educational measures to ensure the implementation of this article. "To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: - (a) Provide for a minimum age or minimum ages for admissions to employment; (b) Provide for appropriate regulation of the hours and conditions of employment and (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present Article".
Contd. P/3
- : : 3 : :-
The age of compulsory schooling in our country is up to 14 years as envisaged in article 21 A of the Constitution of India and therefore, in terms of Articles 1 & 2 of ILO Minimum Age Convention, 1973 (No. 138) and Article 32 of UN Convention on the Rights of the Child, the minimum age for admission to employment is deemed to be 14 years and therefore, all the children up to the age of 14 years are deemed to be prohibited to work.
The Second Labour Commission of the Government of India noted, " The only way to prevent child labour is to recognize that the rightful place of children is in school, not in the work place or in the house. So, the first step is to ensure compulsory primary education for all children. Historically and world-wide, wherever child labour has been abolished, this is how it has been done." It further noted, "We would like to point out that whether the child is employed in enterprises and industries outside the home or at home, for wages or to help in domestic chores or family occupations, it does result in the forfeiture of opportunities for education and for formation."
The classification among child labour for the purpose of prohibition is illegally and Unconstitutional after the insertion of article 21 A of the Constitution. The tenor of this article makes it very clear that all the children have to be in school and not at work. The existence of child labour after fifty-seven years of independence of the country would make mockery of the right to compulsory schooling as envisaged in this article.
The other fundamental and human rights of the child also cannot be protected unless the child is enrolled and retained in full time formal school. That several rights of the child including right to health, right to mid-day meal, right to participate in society, right against early child marriage etc. can be best protected if the child is in the school and not at work place. In order to give effect to the letters and spirit of article 21A of the Constitution, the government must take immediate steps to amend the Child Labour Act, 1986 banning completely the child labour in all forms and providing severe penal provisions against its violators.
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03.05.2005
(483, Lawyers' Block-II, Delhi High Court, New Delhi-110003, M. 9811101923, E-mail: socialjur@xxxxxxxxxxxxxxxx)
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