Home > Archives (2006 on) > 2008 > December 20, 2008 - Annual Number 2008 > Abolition of Child Labour and Right to Education

Mainstream, Vol XLVII, No 1, December 20, 2008

Abolition of Child Labour and Right to Education

Sunday 21 December 2008, by Lakshmidhar Mishra

‘Hope springs eternal in human breast’ is an old adage in English. It became quite meaningful when I came to know with a lot of happiness a few days back from the newspapers that the Union Cabinet has approved the Right to Education Bill, 2005 and that the said Bill was likely to be introduced in the forthcoming winter session of Parliament in December 2008.

In 1946 India signed the Universal Declaration of Human Rights. Article 26 of the Declaration said that everyone had the right to education and that elementary education should be free and compulsory.

However and regretfully enough, when the Constitution of India was enacted on November 26, 1948 or when it came into force on January 26, 1950 the right to education was not included as a fundamental right but merely as a Directive Principle under Article 45 which said:

The State shall endeavour to provide within a period of 10 years from the commencement of the Constitution for free and compulsory education for all children until they complete the age of 14 years.

It is well known that a directive principle is not enforceable by law. Even though 14 States (out of 28) made an endeavour to enact laws on free and compulsory education for all children upto 14 years of age, these laws merely remained on the Statute Book without being enforced. The Government of India could not force the remaining States to make an endeavour to provide for what 14 States had provided because Article 45 was merely a directive principle.

The much promised ten-year period was over on January 26, 1960 but there was no sign of access of all children upto 14 years of age to free and compulsory education becoming a reality. It was still a distant dream. While this was the national scenario a number of positive and encouraging developments took place on the international scene. A number of international instruments such as Declaration of the Rights of the Child, 1959, Convention on the Rights of Children, 1989 (CRC) and the World Declaration of Education for All, 1990 (Jamteen, Thailand) were in place. Although all of them laid stress on the mandatory obligation on the part of government to provide free and compulsory education to all children at least upto the primary level and India was a party to all of them, primary education on a nationwide basis remained a mirage.

In moments of doubt and dispute, anxiety and uncertainty we look upto our Apex Court to show us light in the midst of darkness. That is what happened in 1993 in J.P. Unnikrishnan versus State of AP (AIR 1993 SC 2178) in which the Apex Court for the first time held that right to education was not a mere Directive Principle and that the Government of India and the States were obliged to ensure the right to free education of every child upto the age of 14 years. Despite a note of dissent from two judges in a five-Judge Bench, the Apex Court lifted the obligation of the State to provide primary education from a Directive Principle under Part-IV and installed it as a matter of enforceable fundamental right in Part III of the Constitution.

It took the Government of India nine years from the date of judgement of the Supreme Court to insert right to education as a fundamental right (Article 21A) by way of the 86th amendment to the Constitution of India in 2002. Article 21A of the Constitution reads:
The State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may by law determine.

It took the Government of India three years to frame the Right to Education Bill, 2005 which was waiting in the wings for another three years since its formulation to be finally approved by the Union Cabinet in November 2008.

What does the Right to Education Bill provide? It provides for the right of every child who has attained the age of six years to be admitted in a neighbourhood school and to be provided free and compulsory education in such a school. Every State is responsible for making such neighbourhood schools available. All schools, whether State Schools, aided or unaided private schools, will have to provide free and compulsory education upto a specified percentage of the total number of children admitted. One of the provisions ostensibly prohibits private tuition by teachers—ostensibly as the provisions allow the teacher to engage in ‘teaching activity for economic gain’ if it is assigned by the employer or supervisor. These provisions, however, are yet to be debated and approved by Parliament since the Bill is yet to be introduced in Parliament.

II

I would now like to dwell on the nexus between Right to Education and Abolition of Child Labour. Legally speaking, a child is a person below a particular age, say, 14 or 16 or 18. In a more refined sense it is the finest and most precious human resource known for its simplicity, innocence, pristine purity and guilessness. It constitutes our succeeding generation, our finest asset. It is the centre of our hope for rebuilding humanity. Childhood as a stage in the cycle of human life represents the most tender, most formative and most impressionable stage of human development. This is a stage meant for singing, dancing, painting, cartooning, sculpting, playing and learning not merely the three R-s, that is, reading, writing and arithmetic, but a host of skills such as life skills, communication skills, survival skills, attitudinal and behavioural skills, leadership skills, managerial and entrepreneurial skills and so on. This is certainly not the stage for work, hard manual work, arduous and drudgerous work and far less hazardous work spread over long hours and performed under unclean, unhygienic and unsafe conditions which will be lethal to the life and limb of a tender human resource like a child.

There is a clear scientific rationale behind my continued advocacy for years for a minimum age of entry to the world of work. Any person intending to enter the world of work should be :

• physically energetic;

• mentally and emotionally sound, stable and mature;

• capable of taking management decisions in time;

• aware of the consequences of such entry;

• capable of facing the situations and dealing with them as they come.
Such a minimum age should not be less than 14 in case of simple, innocuous and harmless work and 18 in case of difficult, strenuous and hazardous work.
There are well known consequences found on the basis of empirical studies if a person regardless of his/her age enters the world of work such as

• early aging;

• dissipation and devitalisation of energy;

• stunted and wasted growth;

• exposure to occupational diseases;

• eventual loss of childhood and all the joy associated with that childhood.

It hardly needs to be stated that once childhood has been lost neither can it be restored nor the excitement and joy which are associated with that childhood can be regained. The loss is a permanent one; it leaves a void which cannot be bridged.

This notwithstanding, children have been at work and they continue to be at work both at home and outside, at the originating as well as at the destination point, with or without wages, with or without parents, on volition or without but generally under unclean, unhygienic and unsafe working conditions which are involuntary, forced on them and mostly hazardous to their life and limb. The entire process of subjecting children to work—voluntary or involuntary—is at the cost of their education. Childhood on account of such work is not only lost but sometimes gets maimed, mutilated, damaged and destroyed and gets blurred beyond recognition. Very often poverty and economic compulsions are cited as the principal contributing factors but the real causes are deeper. There are mindsets of parents, mindsets of employers, perceptions of the working children themselves and perceptions of the civil society and the State—perceptions which are essentially negative. All these need to be understood and internalised before coming to the right conclusions.

Parents wrongly perceive children as economic assets and often push them involuntarily to work without being bothered much about the consequences of the children’s unwarranted and unprincipled exposure to such work amidst dust, heat, fume, toxic and gaseous substances which pervade the workplace. While incremental income generation is perceived as the most important driving force behind such a decision/action, the irrelevance and worthlessness of the prevailing educational environment compounds it further. ‘A few hours at the workplace is worth spending several years in the school’ is the common refrain.

Child labour also rests on the premise of intergenerational skills. Parents feel and believe that (a) their existing family income for a large size family in particular is low on account of low skills and less number of persons working, (b) for better income higher skills are necessary, (c) such skills can be learnt by working with parents for years.

Employers feel and believe that children have nimble fingers. They learn fast and work fast. They are more agile, alert, more attentive and productive and hence preferable to adults.

They are docile and submissive and will not resent or resist when asked to do something or comply with directions, howsoever unsuited the occupation may be to their age or strength. [Article 39(e)] They are not unionised and hence will not drag employers to trade disputes.

Working children sometimes look upon their jobs as training for skills. They also look upon jobs as an experience for getting better jobs at higher wages at a later date. Most of them regard schooling as a boring and drudgerous experience and not animated, exciting, interesting, joyous, relevant and worthwhile. They feel and believe that schooling for children implies dependence on the family for five to seven years and many of them abhor such dependence. They regard their employment as a means to help and support their younger siblings.

The intelligentsia generally turn a blind eye to the imperative need for universal abolition of child labour. They advocate existence of child labour, as they used to do in the fifties, sixties, seventies and eighties, on the ground of tragic socio-economic realities related to poverty, unemployment, large size family and need for supplemental income. They advocate it on the ground that it’s a global phenomenon. Many of them correlate existence of child labour to a set of social and cultural norms. To illustrate, in 1979, which was also the International Year of the Child, the Government of India appointed a Committee under the chairmanship of M.S. Gurupadaswamy. The Committee in its report drew a distinction between child labour and exploitative child labour; it was of the considered view that all forms of child labour are not abhorrent but only the exploitative forms. The Committee did not recommend universal abolition of child labour but abolition of only the exploitative forms. This line of argument later gave birth to an artificial line of distinction between hazardous and non-hazardous forms of work or employment. When the Child Labour (Prohibition and Regulation) Act was enacted in December 1986, it reflected this thinking in the framework of the law. The thinking was to prohibit employment of children in hazardous forms of work while regulating it in non-hazardous ones.

Nothing could have been more fallacious and, therefore, objectionable than this. It does not make much sense to draw an artificial line of distinction between ‘hazardous’ and ‘non-hazardous’ forms of employment. What appears to be innocuous and harmless forms of work on the surface could be potentially hazardous to the life and limb of children and, therefore, employment of children in these forms of work cannot be justified. Secondly, exploitation is an insensible act of an adult woman or man and behind every form of labour or service involuntarily extracted by one from another, there is an inherent motive to extract the maximum in terms of material or financial gain at the cost of health, safety and well being of the labouring person. It is unreasonable, therefore, to draw a line of distinction between exploitative and non-exploitative forms of labour. Thirdly, regulation of hours of work, spread over, weekly off, wages, overtime etc. will be a myth in the current scenario of employment market where (a) much of the work tends to get outsourced, (b) much of the work falls in the informal sector where employment itself is casual, unstable, low wage, insecure and unsafe, and (c) the emphasis in the entire process is on maximum output in less time and cost and on appropriation of quick bucks and often at the cost of health, safety and well being of workers.

Mindsets are essentially ill perceived notions and can be easily demystified and demolished one by one. Children are not adults and are not expected to be members of a trade union. The question of children dragging or not dragging the employers to trade disputes, therefore, does not arise. Nowhere it has been conclusively proved that children are more productive than adults merely because they have nimble fingers which in any case are meant for reading, writing, arithmetic and pursuing finer objects of art like painting and sculpting and not for weaving carpets. Skills like carpentry, smithy, leather work etc. do not require years of learning by children with parents; many of these skills can be acquired in a much shorter period of time. Transfer of intergenerational skills can, therefore, hardly constitute a ground for continuance of child labour. Such skill training can always be integrated with education. Empirical studies have shown that children work for more than 12 to 16 hrs a day (as against 50 per cent of the hours of the adult) but what they receive is a pittance, that is, much lower than even 50 per cent of wages payable to an adult. There is no spread over, no overtime and no weekly off. The theory of incremental income generation as one of the expectations of the parents, therefore, is as much a myth or fallacy as the theory of transfer of intergenerational skills. If a balance-sheet is drawn between the so called temporary economic gains and permanent damage which will be caused to children as a result of their exposure to work as Ms Neera Burra has brought out in her book, Burn to Work, the latter will far outweigh the former.

Within the ambit of a plethora of mindsets or negative perceptions the one which is the most anathema to a civilised human conscience is the bias towards girl’s education which is largely socio-cultural. This could be explained in a number of ways. Traditionally, the desire for male offsprings and inclination to provide the best of education, dress, food, health, medical care and attention to male children at the cost of their girl counterparts has persisted for generations. Any number of international conferences, instruments, national policies and programmes of action, constitutional and legal provisions, judgements of the Apex Court have not made much qualitative difference to the age-old phenomenon of sex based discrimination. Girl children are discriminated, both before and after birth, in intra household distribution of work and in terms of denial of a number of basic entitlements (access to education, health, medical care, immunisation, nutrition, treatment with dignity and decency, equality and freedom). The inequity in terms of intra household distribution of work comes out clearly in a scenario where girls are pushed to collection of fodder, fuel and water. These occupations are fraught with occupational risks and hazards; they are also at the cost of girl’s education. Girls being given away in marriage much earlier than the statutorily stipulated age (18) constitutes yet another act of wanton cruelty, discrimination and neglect in a male dominated society.

Like girl children the plight and predicament of migrant children (both boys and girls) accompanying parents to the destination point call for focused attention and ameliorative action. Such children willy nilly are pushed to work at the destination point and suffer the following consequences:

• Working hours are unusually long;

• there is no spread over, no weekly off;

• welfare facilities and amenities are conspicuous by their absence;

• children are exposed to dust, heat, fume, toxic and gaseous substances; they cannot withstand the rigours of hazardous work;

• they would die either of electrocution or other accidents;

• they are the worst victims of educational deprivation;

• they remain vulnerable to multiple forms of exploitation and abuse of contractors and their agents;

• the accidents they fall victims of are never reported; workmen’s compensation is seldom paid even though the Workmen’s Compensation Act, 1923 does not exclude children from its purview; it is as much applicable to them as to adults.

III

CONVENTION No. 138 of the ILO which was adopted by the International Labour Conference in 1973 is the first major international instrument which had clearly articulated a nexus between prohibition of child labour and Right of Access to Education. While prescribing a minimum age of entry to the world of work at fifteen it had, keeping in view the diverse stages of socio-economic development obtaining in different member States, conceded considerable flexibility to the latter in prescribing such an age for prohibition of employment of children.

While India is yet to ratify this Convention it could have drawn a lot of inspiration and strength to translate the basic spirit behind the instrument into its national policy framework. That, however, did not happen in its entirety. A National Policy for Children was no doubt formulated in August 1974. A Resolution, dated August 22, 1974, was issued by the Department of Social Welfare after obtaining the approval of Parliament to the National Policy. It was a laudable instrument for protection and development of children in many respects. It reiterated several constitutional provisions in regard to access of children to health, education, immunisation and nutrition. It specifically reiterated that all national plans should be oriented towards development of children as the most precious human resource.
It included among things:

• children to be protected against neglect, cruelty and exploitation;

• training and rehabilitation of delinquents, destitutes, neglected and exploited children.

It provided for a National Board for Children which was constituted and reconstituted in 1981 and 1986 under the chairmanship of the Prime Minister.

It paved the way for formulation of Integrated Child Development Services (ICDS) in 1975 which with nearly one million Anganwadi Centres today is the single largest development programme for children in the three-to-six age-group in the whole world.

It did not, however, specifically provide for universal prohibition of child labour including a strategy for release of children from work and their rehabilitation through education, nutrition, check-up of health and skill training.

The National Policy on Education, 1986 recognised the holistic nature of child development centering round nutrition, health, social, mental, physical, moral and emotional development.

It did not, however, specifically indicate anything about elimination of child labour nor sought to establish a nexus between early childhood education and care, primary and elementary education with elimination of child labour.

The first policy statement in regard to elimination of child labour came in the shape of a National Policy in August 1987, that is, 13 years after the first comprehensive National Policy on Children. This was preceded by a legislative framework on prohibition and regulation of child labour in December 1986. There was in essence not much of a difference between the National Policy, 1987 and the legislative framework, 1986 (which had repealed the Employment of Children Act, 1938) inasmuch as (a) both sought to combine prohibition with regulation, (b) prohibition of employment of children was in hazardous occupations and processes, and (c) regulation of employment of children was in the rest.

Severe limitations have been experienced in regard to both prohibition and regulation. The Ministry of Labour suo moto does not issue a notification prohibiting employment of children; it has to be guided by the expert advice of a Technical Advisory Committee constituted under Section 5 of the Child Labour (Prohibition and Regulation) Act. The pace of issue of notification as also the rigour of enforcement have been painfully slow. There have been serious operational problems in regard to determination of the correct age of children in a scenario where there is no universal registration of the births of all children particularly in rural areas even though the Registration of Births and Deaths Act was enacted way back in 1969. A prescribed medical authority to adjudicate disputes between the labour law enforcement machinery and employers is required to be constituted under Section 10 of the Child Labour (Prohibition and Regulation) Act. It is not a multidisciplinary authority comprising of orthopaedics, surgeons, radiologists, nutritionists and paediatricians and the decision of a single person, that is, an officer not below the rank of Assistant Surgeon, which is final and non-appellable, is reported to have favoured the employers and served their interests instead of serving the interests of children for whom the law has been enacted.

While children employed in hazardous work are to be released and rehabilitated through education, nutrition, check up of health and skill training both according to the National Policy as also as per directions of the Apex Court (M.C. Mehta versus State of Tamil Nadu dated December 10, 1996) employment of children in the rest is required to be regulated. Regulation means regulating working conditions in relation to hours of work, wages, spread over, payment of overtime, payment of weekly off, provision of potable water, first aid, washing and bathing facilities, conservancy facilities, creche, canteen, provision of safety appliances and so on. In the rural areas and in the highly flexible work environment of the informal sector where children are mostly employed, hours of work cannot be easily computed. Working hours are generally long (as against four-and-a-half hours a day and 27 hours a week for children), work is in a group, is usually piece rate and children tend to work longer to maximise their earnings on account of such piece rate wage. Working conditions are such that work becomes drudgerous and arduous (as in beedi rolling where children are employed in large number); where they have to roll beedis for hours in a sedentary position, in dark, dingy and poorly ventilated work environment with backache, headache and depression as the inevitable consequences.

Statutory regulation of employment of children for prescribed hours is, therefore, a myth; it can rarely be enforced.

The irony of today’s situation is that adults who are employable are sitting unemployed on account of lack of skill, absence of will and determination to work while involuntarily pushing children to work at the most tender, formative and impressionable stage of their life without much concern.

Parallelism is yet another issue of concern as dualism (prohibition and regulation). Under the Rules for Allocation of Business, it is the Department of Education in the Ministry of HRD which is responsible for ensuring access, retention, participation and achievement of minimum levels of learning for all children in the six-to-14 age-group. All children in this age-group must have free and uninhibited access to full time formal schools as against part time NFE centres. Such children may be in need of a transitional education centre as in the largely successful experiment of MVR Foundation in Rangareddy district of Andhra Pradesh (80s) or later in the INDUS Child Labour Project (2003-08) in the five States of Tamil Nadu, UP, Madhya Pradesh, Maharashtra and Delhi for preparing them prior to their enrolment in the formal school system. Such TECs could be for a short duration of six months to one year depending on the particular situation, background of the children and cognitive skills possessed by them. The National Policy on Elimination of Child Labour adopted in August 1987, however, provided for release of children from hazardous work and their enrolment, retention and achievement of minimum levels of learning through special schools under National Child Labour Projects (NCLP). This is a three-year cycle of which the first two years are to be devoted to teaching according to a standard curriculum upto Class IV while the third year is to be devoted to acquisition of certain vocational skills. While the intention behind this experiment may be unquestionable and even laudable, there are serious operational problems and constraints due to non-availability of accommodation within the low rental amount prescribed, non-availability of good quality human resource as teachers due to low honorarium, leading to the teacher’s disinterestedness and eventual dropout, poor quality of teacher’s training, low level of parental motivation despite payment of the incentive money at Rs 100 per child, non-involvement of curricular experts in designing the right type of curriculum which will be wedded to the preferences and felt needs of day to day life on the ground and, last but not the least, non-involvement of the community with the programme as a whole. The fact that the programme has been on the ground since May 1988, has registered 25 times increase in terms of number of projects, centres and coverage and still with barely 3.5 lakh children being mainstreamed to the formal school system, it speaks of the huge gap between the expected and actual outcome. The low level of acquisition of cognitive, affective and psychomotor skills is yet another matter for deep concern. Empirical studies have shown that even children at Class IV or V find it difficult to take down dictations given by the teacher naturally and spontaneously, they find it difficult to read aloud what is written on the blackboard or in the textbooks with proper pause and rhythm, are extremely weak in attending to drills and exercises and have generally extremely low levels of proficiency in mother tongue, arithmetic and sciences (both earth and physical sciences and social science).

IV

AT the end of this soul-searching exercise what should be the much needed wavelength which all of us should share? This at the cost of sounding repetitive may be summed up as follows:

• a child is the most precious object of creation; it’s a priceless gift of the creator to humanity;

• childhood representing pristine purity, innocence and guilelessness is the most tender, most formative and most impressionable stage of human development;

• this is a stage meant for singing, dancing, painting, sculpting, cartooning, playing and learning not just the three R-s but a host of skills;

• this is certainly not a stage meant for being pushed to the world of work, far less to that of hard manual work and work which is strenuous, drudgerous and hazardous to the life and limb of a child;

• childhood once damaged and destroyed is lost forever as also the excitement and joy associated with the former; once lost they can never be regained;

• posterity would like to put the following questions to the parents, guardians, employers, contractors and scores of middlemen who on account of their action and conduct, have been responsible for the immensity of human tragedy caused to children by subjecting them to work at the most cherished phase of their life which is meant for learning and a host of other desirable activities:

I. What moral right and authority you had to do to your children, your succeeding generation, what you have done all these years by carrying them almost to the brink of near total destruction?

II. Would you stop doing what you have been doing all these years and restore to children their rightful place in society and to their irreducible barest minimum entitlement in terms of access to education, health, medical care, nutritious diet, potable water, elementary personal hygiene and sanitation and more than anything else respect for their dignity and decency?

• In order that we restore to children their rightful place in society, we need to individually and collectively speak with one united voice, energy and conscience the following:

• invidious distinction between child work and child labour must go;

• invidious distinction between child labour and exploitative child labour must go;

• artificial distinction between ‘hazardous’ and ‘non-hazardous work’ must go;

• artificial distinction between tolerable and intolerable forms of child labour must go;

• elimination of child labour in any form is non-negotiable and should be viewed as such by all sections of civil society;

• every child in a school going age (6-14) who is not in the school or who is out of school is a working child;

• a development process which is antipodal to children’s development is no development at all;

• education is the key to development, it is also the surest and most effective means of preventing child labour;

• elimination of child labour and access to free and compulsory education are co-terminus;

• allout efforts, Central and State, individual and collective must be made to put all children in six-to-14 age-group in the formal school system with adequate planning and preparation;

• elimination of child labour is human rights related and not trade related; all forms of protectionism which use existence of child labour as a ruse to deal with imports/exports must be resisted;

• child labour is a cause of poverty; it breeds and perpetuates poverty. A household by taking recourse to child labour will never move out of poverty; it will simply shift poverty from one generation to another;

• within the broad canvas of child labour, the girl children who are discriminated against boys, who have to spend a lot of time in collection of fodder, fuel and water, who are given away in marriage early (notably in Bihar, UP, MP, Rajasthan, Chhattisgarh and Jharkhand where the average age of nuptiality of girls may be lower than eighteen) and who have to shoulder the heavy responsibility of a mother, a house wife and an unpaid worker for 24 hours should deserve our special priority attention based on total empathy and sensitivity;

• we need to wage a united and relentless fight against non-poverty elements such as mind-sets, social sanction based on die-hard customs and prejudices, obscurantist ideas and practices which create, reinforce and perpetuate child labour.

Where do we go from here? We have bundles of gaps and anomalies—in the Constitution, in the legislative framework and in the national policy and programme of action. To illustrate, Article 24 of the Constitution speaks of prohibition of employment of children in factories, mines and hazardous forms of employment. It does not define what is a hazardous form of employment nor does it spell out clearly as to what we should do with our children who are in non-hazardous forms. To that extent, the synergy between Article 24 and Article 21A is wanting. The legislative framework more or less follows the same route of dualism (combining prohibition and regulation) which is further reinforced in the national policy and programme of action. The Apex Court in M.C. Mehta versus State of Tamil Nadu has also issued a clear direction that only those who have been employed in hazardous work should be withdrawn from such work and should be straight away enrolled into the formal school system. As regards the children who are engaged in non hazardous work, they should continue to do so for four-to-six hours a day and receive non-formal education for two hours in the evening. The cost of such education should be recovered by the labour law enforcement machinery from the employer of the concerned establishment—the Court has added. There are, no doubt, a number of redeeming features in the judgement such as (a) constitution of a child labour welfare-cum–rehabilitation fund at the district level under the chairmanship of the Collector and DM, (b) recovery of Rs 20,000 per child employed in hazardous work from every offending employer and crediting the said amount to the above Fund, (c) the State Government to provide a job for every able bodied adult member of a family whose child is in employment in a factory or mine or in any other hazardous work, and (d) for failure to do so the State Government should deposit a sum of Rs 5000 for each child employed in a factory or mine or in any other hazardous employment.

These directions were undoubtedly issued with a lot of laudable intentions. Regretfully, nearly 12 years have passed since the directions were issued and the status of compliance by all concerned leaves anything but desired. If a sum of Rs 20,000 would have been collected from every offending employer and credited to the District Child Labour Welfare-cum-Rehabilitation Fund it would have built up a massive corpus which by way of grant of scholarship would have come quite handy in meeting the cost of higher education of working children and particularly those who are indigent. That has not happened. What has been recovered from the offending employers, according to the admission of the State governments themselves, is a pittance (less than one per cent of the recoverable amount). As it has transpired, one of the reasons as to why this amount could not be recovered fully is the fact that (a) the employers contested their liability to pay this amount on the ground that there was no employer employee relationship and the child in question was above 14 years of age, (b) there was a dispute about the age of the child, (c) the said dispute was referred to the prescribed medical authority, (d) the said authority gave the opinion (which is final and non-appellable) that the child in question was above 14 years of age, (e) the prosecution fell and the offending employer escaped with impunity. The directions of the Apex Court regarding opening of a cell in the Department of Labour or the Collector/DM maintaining the level of desired vigilance or surveillance over the work of Labour Inspectors appointed under Section 17 of the Child Labour (Prohibition and Regulation) Act are yet to be complied fully. The Cells, wherever opened, are non-functional and the much needed coordination between various departments—Home, Law, Labour, Revenue, Women and Child Development, Social Welfare, Welfare of SC and ST etc.—is yet to become a reality. Most of the Departments continue to look upon the issue of elimination of child labour as a mandated responsibility of the Department of Labour alone and not an issue of global or national concern.

V

IT is true that the anomalies as above may continue till the Right to Education Bill has been passed by both Houses of Parliament. As and when the Right to Education Bill is passed by both Houses of Parliament and we look forward to that event with a lot of optimism the following consequences are likely to follow:

• there will be no need for Child Labour (Prohibition and Regulation) Act in its present form to continue;

• this should be repealed and replaced by a new law which should provide for universal prohibition of employment of children in all occupations and processes;

• the artificial distinction between hazardous and non-hazardous forms of employment would have to be removed;

• there should be an omnibus provision in the new law regarding minimum age of entry to the world of employment; to start with, this can be fourteen which must be progressively stepped upto eighteen but within a specific time frame to be laid down;

• the moment the minimum age of entry to the world of work has been raised to eighteen, the different ages of entry in Factories Act, Mines Act, Plantation Labour Act, Motor Transport Workers Act, Beedi and Cigar Workers (Conditions of Employment) Act, Merchant Shipping Act, Building and other Construction Workers (Regulation of Employment and Conditions of Service) Act, Shops and Commercial Establishments Act etc. should be made uniform and fixed at eighteen;

• the Children (Pledging of Labour) Act, 1933 is still on the Statute Book but is not being enforced. The essential provision in this law, that is, neither the parents nor the guardians can mortgage the services of a child to a contractor/sub contractor/middleman or anyone for some consideration and the agreement, if any to this effect should be void is extremely sound, sensible and unexceptionable; it should be incorporated into the new law on universal prohibition of child labour;

• the new law additionally should provide for the following:-

• constitution of a prescribed medical authority for determination of age;

• instead of there being only one medical officer of the rank of Assistant Surgeon the authority should be a multi disciplinary body comprising of an orthopaedics surgeon, a radiologist, a paediatrician and a nutritionist;

• the methods for determination of age need to be built into the framework of law;

• the release of children, issue of a release order by the competent authority to be prescribed, arrangements straightaway restoring children to parents or for keeping children in a transit home/education centre (TEC) before repatriating them to their originating point if they happen to be migrant children, rehabilitation of children in either case through education, nutrition, check up of health and skill training etc.

VI

THE other and more important question is:

What are the issues to be tackled through the Right to Education Bill? Education has a large target group and they are not placed in the same situation. We have pre-school children, normal school going children, adolescents and adults. We have advantaged and disadvantaged families and people; children born of normal parents with normal working and living conditions constitute the normal or advantaged target group. Girl children of poor parents, children in remote and inaccessible pockets, children accompanying migrant parents, physically, orthopaedically and visually challenged, children who have severe learning disabilities, children who are victims of autism and cerebral palsy, children from the families of SC, ST, linguistic, religious and cultural minorities, children who have HIV/AIDs etc. belong to the disadvantaged target groups.

Both in terms of outreach, drafting a common curriculum and course content, adopting a language as a means of communication in a bilingual situation where children speak a dialect at home different from the State Standard language, drafting teachers from the plains, despatching them to tribal areas where teachers of the required number and proficiency are not available, motivating and training them to evince the same zest and zeal, interest and commitment towards tribal children (as they would have done to children in plains) are some of the dilemmas or serious operational constraints which baffle us, haunt our individual and collective conscience and inhibit our thinking and planning.

A true and meaningful education is possible, feasible and achievable only in the context of universal recognition of the sacrosanctity of human life itself. It is in this context that we should collectively ask the following questions to ourselves:-

• Where is the sacrosanctity of human life guaranteed by Article 21 of the Constitution when there is recourse to sex determination tests (PNDT Act, 2002 notwithstanding), mindless foeticide, mindless female infanticide, adverse sex ratio, trafficking, disappearance of children for begging, engagement of children for sale of newspapers, journals, periodicals and books at traffic squares at considerable risk to their lives, engagement of children in circus, for transfer and sale of organs, for camel jockeying, when millions of children are being involuntarily pushed to work at the cost of their health and education?

• Where is the sacrosanctity of human life when there is so much of unprincipled segmentation, differentiation and discrimination between boys and girls, in matters of equal access to food, dress, health, education and so on, when there is increasing domestic violence and increasing sexual harassment at the workplace?

• Where is the sacrosanctity of human life when we are not able to prevent the petals of childhood from withering away in wilderness before the same blossoms to the flowers of youth and manhood?

Let me illustrate my point by quoting the following:

• every year 21 million children are born in India;

• of them eight million die which include 3.2 million infants leaving 13 million who survive;

• 40 per cent of the deaths occur among children below 5 years while 50 per cent of the deaths occur among children who are less than one year;

• National average IMR is 66 per 1000 live births while MMR is around 400+ per 1,00,000 pregnant women;

• The findings of the third round of National Family Survey (2005-06) indicate the following:-

• at the all India level, nearly 46 per cent of the children below the age of three are under weight;

• among children aged three to six years the PC of anaemic children has gone up from 72 per cent in 1998-99 to 79 per cent in 2005-06;
w over 2.5 million children are threatened by blindness in early childhood;

• over 12000 to 14000 children in three-to-six years of age go blind every year due to acute Vitamin ‘A’ deficiency;

• 75 per cent of children in the one-to-five years age group have body weights below 75 per cent of standard weight of normal children;

• anaemia in young children is associated with impaired cognitive performance, psychomotor development and scholastic achievement.

Education is closely related to empowerment. Empowerment is basically the ability to judge issues and take decisions on relative merits and demerits of the issue. It is also the ability to face situations with strength, courage and self confidence without being overtaken by the tide of events and eventually develop the ability to lead an autonomous existence. Education is undoubtedly the most powerful tool for such empowerment but such a tool will be possible only when a holistic and integrated view of life is taken and an all out war is waged against all the vicissitudes (like hunger, starvation, malnutrition etc.) which sap human vitality and inhibit the role of education as a tool of that empowerment.

Additionally, true education is one which liberates the human spirit from fads, taboos, mindsets, obscurantist ideas and practices which are inimical to the freedom of human spirit. I would like to illustrate this with a couple of illustrations:-

• true education replaces the culture of acquiescence and submissiveness by a new culture of objective and dispassionate scrutiny;

• true education replaces the culture of mute silence and helpless dependence by a new culture of self esteem, self assertion, self-efficacy and self-determination;

• true education replaces the culture of conformism to obscurantist ideas and practices by a new culture of rational, secular and scientific temper;

• true education replaces the culture of unprincipled segregation, differentiation and discrimination by a new culture of complete equality and equity;

• true education replaces the culture of intolerance of dissent, hatred, wanton cruelty and mindless violence by a new culture of tolerance, patience, love, kindness and compassion;

• true education replaces the culture of hegemony, tyranny, injustice and oppression by a new culture of civility, courtesy, consideration, catholicity and egalitarianism;

• true education releases all human beings from the shackles and fetters of servitude to the joy of freedom what the noted Marathi poet Siralkar had brought out so lucidly and forcefully:
‘The sweetest and best of all symphonies
-Is not the song of mehfils
-Nor the murmur of streams
-Floating from the hills and into the sea
-Nor the plaint of the cuckoo
-It is the sound of laughter
-Anywhere of everyone
-It is the sound of the fetters breaking.’
-Jai Hind.

Dr Lakshmidhar Mishra, IAS (Retd), is a Special Rapporteur, National Human Rights Commission.

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