India was one of the 135 countries, in the world, to recognize education as a fundamental right. In 2002, through the 86th amendment, Article 21-A was added to the constitution which recognised education as a fundamental right of children between the age of 6-14 and this amendment led to the formulation of the Right to Education(RTE)Act,2009, which provided for free and compulsory education to children belonging to the age group of 6-14 and this was enforced on1st April 2010. This law guarantees primary education to all children belonging to the 6-14 age group. This country has one of the youngest populations in the world but quite ironically it also has one of the highest numbers of child labourers and makes up one-third of the globe’s illiterate population. Even though the government of India has ratified the International Labour Organisation’s Conventions, concerning worst forms of child labour (Convention 182) and the minimum age for employment(convention 138) the country has a long way to go to completely eradicate child labour and provide children with equal access to education.
Is it an act that permits child labour?
The Child Labour(Prohibition and Regulation)Act of 2016, was an amendment to the Child Labour(Prohibition and Regulation)Act of 1986. The amended act proscribed the employment of all the children, between the age of 6-14, in all occupations and proscribed the employment of the children, between the age of 15-18 or adolescents, in hazardous occupations or processes which are hazardous. Therefore, it could be said that, in reality, this act allows child labour of children above the age of 14 and thus this is one of the major flaws of the amendment act. Section 4 of the RTE Act,2009 provides that if a child between the age of 6-14 has not been able to get admitted to any school or not been able to complete their elementary education, they could be admitted to a grade that is appropriate for their age and will also receive special training and that a child admitted to the school, in this manner, will be able to access free education until he or she completes elementary education even after he or she completes the age of 14. Since child labourers are from extremely poor families their parents would prefer their children to earn income rather than attend schools and because of this children, above the age of 14, would be forced to leave schools and coerced to do work even if the RTE Act,2009 states that they could complete their elementary education even if they have surpassed the age of 14.
One of the other flaws in the amendment bill was that the number of hazardous occupations, that was listed, was reduced from 83 to 3 and these occupations were confined to mining, production of explosives or substances that are inflammable and other types of occupations as mentioned in the factories act,1948. It also allows the government to add or remove any occupation that they think is hazardous and they do not have to approach the parliament for it. This provides a very inadequate definition of hazardous occupations. This can make the children, between the age of 15-18, vulnerable to exploitation in other areas of employment such as gem-cutting, butcheries, weaving of carpets etc which could also be considered as hazardous occupations. The people who employ children, in such hazardous occupations, belonging to the age group of 15-18 will be able to circumvent the law and also since the RTE, Act 2009 makes education compulsory only for children belonging to the age group of 6-14 the children above the age of 14 will be particularly vulnerable and will be forced to work thus depriving them of the access to basic elementary education.
Not all domestic work is safe and often very young girl children are employed for such work. The lack of recognition of certain types of domestic work, which are excessive and which may hamper the education of children, as a hazardous occupation is another flaw in the amended act. According to the study conducted by UFDWR, the number of children who are employed as domestic workers is approximately 12.6 million and 86% of these children are young girls. Many young girls are side-lined to carry out domestic work and this can be considered as invisible child labour. This is because carrying out domestic work, which can be characterized as “unpaid work”, becomes disguised as carrying out domestic services is considered as the responsibility of girls which results in the perpetuation of the traditional roles of women. A 2020 report, by the RTE forum and Centre for Budget Policy Studies with the help of the World Bank and the UNICEF, revealed that 40% of girls between the age of 15-18 years were not attending school while 30% girls from the poorest families were completely deprived of access to schools. Even though both male and female children are employed as domestic workers the latter is more vulnerable because parents from poor households often prefer educating their male child at the cost of the female child.
The amended act also allows the children below the age of 14 to help their family or with their family enterprise, provided it does not fall under the category of hazardous occupations or processes, and that they can help their families only during vacations or after school hours. This will allow families to force their children to help them in their family business and interpreting whether this enterprise is hazardous or non-hazardous would be difficult based on the narrow definition that has been provided by the legislation. The number of hours for which the children can be employed was not specified in the amendment and thus this would allow the families to engage these children for longer hours and this would harm their education. Thus, this is in clear violation of the fundamental right to education that is guaranteed under Article 21-A, for children between the age of 6-14, because it would be very difficult for children to attend schools regularly if they are forced to work for longer hours, by their families, after school which would lead children to lose focus while attending classes as they may be exhausted and would eventually drop-out. This provision also causes the children from marginalized castes, whose families are trapped in their traditional professions, to continue with the same occupation and the children are often discouraged to continue schooling and, in this way, the subsequent generations are forced to learn the tools of the trade, and this often leads to intergenerational debt-slavery.
The government must make amendments in the child labour laws to bring in the complete ban of employment of all the children, irrespective of whether the occupations are hazardous or non-hazardous until the age of 18 and the amendments must be made in such a way that it is in agreement with the RTE, Act 2009. The National Education Policy,2020 which replaces the National Policy of Education of 1986 is an all-inclusive framework that works towards the development of elementary education as well as higher education and implementation of effective ways of vocational training across the country. Since education is a subject that falls under the concurrent list, all the states, as well as various educational institutions, can make decisions over the effective implementation of this policy. The NEP suggests the extension of age, under the RTE Act, from 14 to 18. This would also reduce the number of child labourers between the age of 15-18 and the NEP is also in consonance with the provisions for adolescents under the Child Labour (Prohibition & Regulation) Amendment Act, 2016. The government must attempt to join hands with the various non-governmental organisations in the country, that work towards protecting children from child labour and the organisations that aim towards educating children and the government can utilize its resources and its authority, along with the knowledge of the ground reality provided by the organisations, and work towards the effective implementation of all-inclusive laws.
Author(s) Name: Lakshmisusheela Ramachandran (Tamil Nadu National Law University, Tiruchirappalli)