Right versus Needs:

Scrutiny of Right to Education vis--vis Child Labour in India

Mubashir Mushtaq* Shah Muneeb Raza**

AN OVERVIEW:
Child labour is certainly a serious problem that has surfaced during recent time throughout the world. An estimated 158 million children aged 5-14 are engaged in child labour - one in six children in the world1. Originating from a unit as small as family, it affects the society and has long term ramification over culture and ethics in a country especially like India. Not only that, its offshoots has now begun to shape the educational setups and standards of our country offlate. Globally, Africa and Asia, together account for over 90 percent of total child labour. 2 India accounts for 12.6 million child labours, which is largest in the world.3

Student, B.A.LL.B. (Hons.) IV, Faculty of law, AMU- Aligarh.202002 email-mubashiramu@gmail.com Student, B.A.LL.B. (Hons.) II, Faculty of law, AMU- Aligarh.202002 email-sainiki2656@gmail.com

** 1

Child protection from violence, exploitation and abuse, March 6 2008, source www.unicef.org, (Retrieved Feb. 8 2010).
2 3

Niti Mehta, Child Labour in India: Extent and Some Dimensions Pg. 2, (Social Science Research Network ) Report, UNICEF "India- The big picture" source: www.unicef.org (Retrieved Feb.10, 2010).

Notes:
The Research supplemented in this paper, has been obtained from field survey, and by questionnaire, provided to child labours and their employers. The survey was taken in sample unit of in and around Aligarh Muslim University, Aligarh. The case study, provided in Boxes, in this paper is original and has been obtained by personal interviews. However the names have been changed, in order to maintain secrecy.

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This paper is an attempt which deals with a range of perspectives concerning the causes and solutions to the problem of child labour in India.

In particular, the paper examines the basic understanding of the issue of child labour in the Indian context, which has influenced the policies and strategies adopted by the Government. The paper also examines the relation between Right to Education and child labour (need). The paper asserts that compulsory education, at least at the primary level, is not only desirable but also a viable and practicable solution to the problem of increasing child labour.

In the end we have made certain recommendations, which are needed to be addressed along with legislative majors like Right to Education and other acts abolishing child labour, based on the direct data collected from the reliable and immediate sources through proper questionnaire and field survey. 4 These data have guided us to reach a conclusion that is worth consideration.

INDIAN PERSPECTIVE:
Child labour is one of the biggest problems of the society. Especially in India, a developing country, it is a cause of major concern for the government. The child labour rate is extreme in India, despite the legislation ranging from abolition of child labour to Right to Education. Although, there is a variation in the numbers provided by the different agencies, India still continues to host the largest number of child labours in the world today. According to the National Sample Survey Organisation, 16.4 million Indian children aged 5-14 are engaged in

Research, obtained from field survey, and by questionnaire, provided to child labours and their employers. The survey was taken in sample unit of in and around of AMU.

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various works while the World Bank puts that figure at 44 million. 5 According to the Indian Census-2001, the number of child labours in India is about 12.6 million 6.

Child labour is an outcome of the pathetic poverty that a major percentage of the Indian population suffers from. No matter how much the country has advanced in industrialization, education and agriculture, billions of countrymen and women still belong to section of the society, which is termed as BPL (below poverty level) in economics.

It is always suggested to the poor to get their children admitted in schools so that they can get the required education. Certainly a noble thought but a stupid solution to the critical problem, because sending them to school may hinder their family income. In our survey we found that 45% of the child labours were from the family having monthly income ranging from 20002500 rupees. The battle against child labor in India looks to continue to rage on, as millions of children toil away in hazardous and abusive conditions, while laws sit idle as immunity for such crimes against children find themselves lost somewhere in a cultural vacuum.

SCRUTINY OF ROLE OF RIGHT TO EDUCATION IN ERADICATION OF CHILD LABOUR:

Indian civilization recognizes education as one of the pious obligation of the human society. To establish and administer educational institution is considered a religious and charitable object. Education in India has never been a commodity for sale. Looking at the economic front even

5 6

www.merinews.com/article/abolition-of-child-labour-can-make-india-shine/15710470.shtml Supra Note #3

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after six decades of achieving independence, 30% of the population is living below poverty line and bulk of the remaining population is struggling for existence under poverty conditions.

Constitution of India endeavors to provide free and compulsory education for all children until they complete the age of fourteen year. Article 21A of Indian Constitution has added a new Article 21A7 after Article 21 and has made education for all children of the age of 6 to 14 a fundamental right.8

In Unni Krishnan, J.P. and others v. State of A.P and others,9 the Supreme Court declared that the Right to Education for the children of the age 6 to 14 is a fundamental right. Even after this, there was no improvement. A demand was raised from all corners to make education a fundamental right by passing legislation. Consequently, the government enacted Constitution (86th amendment) Act, 2002, which would make education a fundamental right.

Further Article 45 in Directive Principles of State Policy of Indian Constitution, says that The State shall endeavor to provide early childhood care and education for all the children until they complete the age of fourteen years.10

Thus from the study of above articles it is quite clear that children have been given full protection under fundamental Rights and directive principles of state, under Constitution of India.

7 8

The Constitution (86th Amendment) Act, 2002 Bakshi, P.M. Constitution of India, Pg. 57, Art 21-A (inserted by the constitution 86th (A) Act- 2002,
9 10

Section 2 ) which provides that 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

AIR, (1993) 1 SCC, 645. Supra Note #8, Pg. 90 Article 45 (Directive Principles of State Policy), which corresponds to article 13(1) Indian Constitution states, The State
shall endeavor 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.

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Critically evaluating the Right to Education, it is clear that the rationale behind this framing the provision was attracting child labours to the school, but looking at the figures of child labour in India, is evident that the success has not been achieved yet. Though the Right to Education bill- 2006 was welcomed in the upper house of Indian Parliament, but harsh reality is that millions of poor children dont still come under the purview of this law. Approximately 70 million children are currently out of schools in the country. The biggest one is that the bill brings within its purview only children in the 6-14 age groups.

The existing laws to abolish child labour too are "faulty"; we need a comprehensive legislation and a national policy to ensure that all children under the age of 18 years have a right to education. Stern legal provisions and penalties are needed to prohibit all forms of child labour. There are various loopholes in the legislation, which hinder the execution of the law to meet its purpose, they are

First, there is need is to redefine "child" and "child labour" to include all children up to 18 years of age and to include all forms of work that children are engaged in.

Secondly, the national policy must focus not just on rescue of child labourers but also on rehabilitation in mainstream schools. It is estimated that there are about 9 million child labourers of which a majority are in rural areas. Two-thirds of such child labourers are engaged in agriculture, accounting for 73% of casual wage child labourers and 9% of regular workers. According to the 2001 Census, 85 million children in India do not attend school and wind up supplementing family income through various activities. 11

11

Times of India (Delhi ed.) dated 24/6/09

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Thirdly, the child labour Act is faulty too. It leaves out of its purview girls employed in household work. It also differentiates between hazardous and nonhazardous work.

Fourthly, there is a dire need to extend the age group of children covered by the Right to Free and Compulsory Education Act, 2009. Education up to the age of 14 does not make one fit for gainful employment. The Constitution should be amended to provide free education at least till the completion of class Xth. It is thus suggested that Article 24 and 45 should be amended so as to raise the age limit from 14 to 16 years. By doing so the childrens education atleast upto matriculation, would be ensured or the proper growth and development of their personality.

Lastly, Education being as core subject as defense, and so should remain in the public domain; The US spends 5.9% of its GDP on education, while Malaysia spends 8%. In contrast, the Indian government's spending on education for its 400 million children has actually reduced from 3.84% of the GDP in 2008-09 to 3.03% in 2009-10.12 Given the fact that the Right to Education is meant for as high as 40 per cent of India's citizens, the Act is heavily under-funded. Unless we put the state's money into education, the act will remain a paper tiger." We must spend at least 6% of GDP on education to ensure adequate hostels for first generation learners, efforts must be made to bring the backlog of children back to school and integrate older children (15-18 years of age) into an appropriate education programme.

The question which arises here is what needs to be done inorder to combat the menace of Child Labour in India par to the Right to Education. Some of the remedial solutions are put forth and discussed below.

12

Supra note# 11 dated 15/12/09

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REMIDIES:

Reports reveal that 12.6 million of children in India are employed as child labours, which is highest in the world. The problem of the child labour is a fabric one. In our research we tried to find out the causes responsible for child labour. If we check the pull and push factors of the child labour, then only we can abolish child labour, and Right Education cant be the absolute check of the menace. As we found it clear that the maximum child labours are not interested to go back to the school as 55% of the respondent child labours answered No, on being asked whether they want to study or not ?13 So the situation is worsen and not properly curbed by Right to Education alone. The other checks which are to be employed are:

Curing Poverty:
Its poverty that forces them to push their young kids into the gallows because at the end of the day, its money that matter to them. In a nutshell, child labour and poverty are just two sides of a coin. Poverty is the head and child labour is the tail. If the tail has to be cut then the head needs to be chopped off first.
A 13 year old boy, Kamran when asked by us about the reason for work, answered I am the only working child in the family. My other siblings cant work since they are still younger. It was my mother who asked me to work, saying that I would help the family if I worked instead of staying home. So I worked at a juice shop for two years, and then shifted to this eatery as the previous place closed down due to some reason.#
# Case study obtained from field work.

Mr. Fayaz (name changed) an eatery owner, said, it (Child labour) is neither a sin, nor a crime, all it is a poverty. #
# Case study obtained from field work.

Poverty has an obvious relationship with child labour. In order to abolish child labour, we need to address the basic issue which promotes child labour to an extent. Opening schools in villages, offering mid-day meals are not

13

Supra note #4

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absolute solutions to child labour. As the school drop outs are large in number because education has no role in their life except surviving. Since poor are becoming poorer and rich to richer, children have no other go, except to work.

The solution lies only in the economic strengthening of India as a nation to such an extent that it passes down to grass root level. Only then will policies such as compulsory education for all
Mr. Khan (name changed) a educated restaurant owner, said, We feel guilty, but what can we do, even if we throw them out, their parents will force them to work somewhere else, according to me they are sold off #
# Case study obtained from field work.

and other social legislations really serve their purpose completely. India has already ratified six ILO

conventions with relation to curbing child labour and ancillary issues.14 But the real solution still lies in the social an economic strengthening of the child and his family.

The fundamental reason behind the perpetual existence of child labour is poverty. According to Planning Commission of India, 26 percent population, still live below the country's poverty line. 15 The States having high incidence of poverty have also high magnitude of out-of-school children and child labour.16 According to ILO, children contribute around 20-25 percent of family income. 17 In our survey we also found that 75% of the child employees give their entire wages to their parents. We also found that 80 % of the child respondents were dropouts from the school, and 40% of total dropouts were by way of
14

Ankit Kumar Lal & Shubham Khare, Child labour in India: situation and policy analysis, (Social Science Research Network )
15 16

India Country Report, Review of Child Labour, Education and Poverty Agenda , Pg. 18

Ibid Pg. 20, (the report states that 83 percent of the poor are concentrated in Uttar-Pradesh, Bihar, Madhya-Pradesh, West-Bengal, Orissa, Assam Andhra-Pradesh, and Rajasthan. Significantly 84 percent of Out-of-school children 6-11 years and 72 percent of child workers aged 5-14 years are also concentrated in these states)
17

Zehra F. Arat, Analyzing Child Labour as a Human Rights Issue: Its Causes, Aggravating Policies, and Alternative Proposals.

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poverty.18

Therefore, abolition of child labour is not favoured by the parents of child

labourers. It leads to a reduction in family income and consequently to a lower standard of living. If child labour is banned without arranging alternative sources of income, frictions may arise in the family and the child may be forced to beg, pickpocket or go hungry. In the absence of possible alternatives, abolition of child labour is likely to aggravate rather than mitigate their misery and hardship. In the years to come, each family should be assured of a certain minimum income by creating jobs for the men and women who are ready to work. This is possible when more employment opportunities are created for the adults through effective enforcement of all the extant anti-poverty programmes. As in our survey we found that the majority of the children working are hailing from the family having less than INR 2000 monthly income.19

When we enquired about the reason of sending children to work, majority of the parents responded that, children are persuaded to work in order to maintain income levels for sustenance and survival of the families, which is healthier than unproductive activities like gambling, which these children adhere to. 20 The poverty and distress displacements encourage parents to withdraw children from schools and enter them in work.

Overhauling educational system:

Even though poverty is cited as the major cause of child labour, it is not the only determinant. The attitudes of parents also contribute to child labour; some parents feel that children should work in order

Nauman (name changed)

10, a

child labour said I was beaten by school teacher, when she found me sleeping in classroom, from that day I didnt go there.#
# Case

studies obtained from field work.

18 19

Supra note # 4 Ibid. 20 Ibid.

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to develop skills useful in the job market, instead of taking advantage of a formal education. The state of education in India also needs to be improved. High illiteracy and dropout rates are reflective of the inadequacy of the educational system. The system needs an overhaul inorder to make it liberal and interesting so as to attract a bulk of child to schools. Even after the children are provided with Fundamental Right, Right to Education, the majority of the children are out of school not alone because of poverty but also due to drop-outs after attending school. The dropout rate is 39.0% in primary classes while it is 54.6% in the upper primary stage during 2001-2002.21 Such drop-outs are the result of harsh and ill-treatment (including corporal punishments) on part of teachers
# Case

Raju, 12, (name changed) a child labour said, I was beaten by my teacher on the Knuckles, with a stick as I had not done the home task, during the cold weather#

studies obtained from field

work.

and disinterested curriculum. In our survey we found that 80 % of the child respondents were dropouts from the school, as 50% respondents found it disinteresting 22. So there is a need to attract children to schools which can be done by imparting informal education along with formal education. Moreover it should be made sure that there is no humiliation of children by the teachers. The teachers should be bound to report, the reasons of the children who cease to come to school, so that a remedy may be sought.

21 22

Supra Note# 15 Pg.22 Supra Note # 4

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Adequate Laws and effective Execution:

As discussed above while scrutinising the Right to education, it is clear that the law is not adequate, and above all we need strict execution of law too. The main problem lies in application and enforcement rather in the black letters of the law. So there is an urgent need to enforce the laws strictly, otherwise it remains a paper tiger. We found that 65% of respondents are not aware of the fact that there is right to free and compulsory education or such government schemes.23 Even 24 years after having banned child labour in India, the country continues to be the home to the largest number of child labourers in the world. The Act to ban child labour today covers only 15% of the total child labour population in the country whereas 80% of the child labour is not covered by the Child Labour (Prohibition and Regulation) Act 1986.24 The Act also lacks consistency as it talks more of regulation than prohibition of child labour. It is prohibited only in certain sectors (Part A and Part B of the Schedule). 25 We found in our survey that 90% of the respondent employers knew Child Labour is an offence and replied that they had never been visited or checked by any police officer, or any concerned authority as such.26 So there is a need to check the menace strictly, so that it becomes hard for the children to work, and ultimately will turn them to attend school regularly.
23 24

Supra note # 4 Sakshi Khattar, Education is key to abolish child labour, Times of India (Delhi ed.) dated June15, 2009

According to Dipankar Majumdar, Director, Child Rights and You (CRY) sectors like commercial agriculture, unregulated factories and immediacies like chronic poverty, which employ close to 80% of the child labour, is not covered by the Child Labour (Prohibition and Regulation) Act 1986.
25

Part II, Section 3, The Child Labour (Prohibition and Regulation) Act, 1986,

Section 10 of the Act lays down, that '... nothing in this section shall apply to any workshop wherein any process is carried on by the occupier with the aid of his family or to any school established by, or receiving assistance or recognition from Government'.
26

Supra note # 4

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Conclusion:
In the backdrop of the above discussion, it may be concluded that the child labour problem is not in isolation, but a fabric one. Education may be a solution to the problem but not an absolute solution. The check on the one cause may hinder the other. As the children are pushed to work by their Family conditions. So total abolition of child labour is not possible, it will affect the poor families. In spite of the presence of Right to Education in India, there is a need to improve the working conditions and provide extensive care to safeguard the child workers from exploitation. Further the present curriculum must be overhauled as such to attract a large part of child labour population towards education. The liberalisation of educational system may decrease the dropout rates from schools, which may prove a boon in eradicating child labour. Every census shows staggering figures of children engaged in labour across the country. In fact, we see this being directly proportional to the increasing poverty in the country. Thus alongwith Right to Education there is a need to incorporate and integrate poverty alleviation and strengthening livelihood opportunities to release children from work. Or in other words, it can be said that on the positive side, apart from Right to Education, the government also needs to address the root-cause, which is poverty. All of the policies that the Indian government has in place are in accordance with the Constitution of India, and all support the eradication of Child Labour. The problem of child labour still remains even though all of these policies are existent. Enforcement is the key aspect that is lacking in the government's efforts. Concluding, we cant eradicate this menace from the roots but can certainly minimize it. The universe is in a State of chaos, there is order in disorder and disorder in order. Those who fear a fall will never learn to fly
Anonymous

Total Words: 2967

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