Finding a home in hope: -Schooling is the Real Safe Space for Children

Abstract

School provide a safe environment and secure and effective means of protecting children from exploitation particularly child labour. For a child school represents more than a institution of learning it provides a safe environment where child develop from various sides such as emotionally, intellectually and socially while enjoying their fundamental rights to education, dignity and protection. Child labour remains one of the most persistent violations of children’s rights which deprives millions of children from education, safety, dignity, and from other opportunities. This article talks about access to quality education which help to remove child labour with sustainable and strategy way.

Introduction

Any person who is not completed the age of 14 years or the age specified in the Right to Free and Compulsory Education Act, 2009.

Child Labour a work that effect the physical, mental, moral and social condition of a children and also having a harsh impact on their schooling. The basic root cause regarding the child labour is weak social status i.e., poverty, lack of access to good quality education and the most important thing weak enforcement of laws. Basically, children are the foundation of each and every nation but unfortunately millions of children are forced into child labour instead of classrooms.

Education is the most important tool to deal with this. India has enacted various constitutional and statutory provisions to protect the child from exploitation. Government starts various types of initiatives such as free education mid-day meal schemes, scholarship, and various other legal and social campaigns to encourage them for school enrolment. However, implementation of these things with the help of strict laws and community participation remain essential to ensure that every child stays in school. 

Constitutional framework: –

The constitution of India establishes various framework for protecting children’s rights such as: –

Article15(3) empowers the State to make special provisions regarding children and women, allowing targeted welfare measures.

Ar.21A guarantees free and compulsory education to all children between the age of 6 to 14 years. This Article basically added from 86^th amendment act 2002, the Right of Children to Free and Compulsory Education Act, 2009 (RTE Act) make operational Article 21A, mandating free schooling and reserving 25% of seats in private schools for economically weaker children.

Ar.24 Article 24 of the Indian Constitution is clearly stated that: “No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment but it does not prohibit them to work in harmless or innocent work.

In case of People’s Union for Democratic Rights v. Union of India (1982), the Supreme Court held that Article 24 must operate proprio vigoro  (meaning the provision operates independently by itself, even in the absence of legislation). This judgment was a turning point, because at that time there was a assumption that Ar.24 cannot be applicable by its own, but through this landmark judgment SC clearly stated that Ar.24 can be independently applicable. In the same case the court also stated that Ar. 23 & 24 are equally applicable to everyone whether it is state or private individual.

In the case of M.C. Mehta v. State of Tamil Naidu (1961) the Supreme Court directed the governments to identify working children, if they are working than how can they will restore from that place and bring them to main education line.

In Bandhua Mukti Morcha v. Union of India (1984) the court expanded the meaning of the right to life by recognising the state obligation to protect vulnerable children from exploitation and bonded labour.

Article 39(e) and (f) direct the state to protect children from abuse and ensure healthy development. Article 39(e) says the State to ensure that children are not forced because of economic necessity into unsuitable labour, and Article 39(f) says that children are given opportunities to develop in healthy environment of freedom and dignity, protected against exploitation and moral and material abandonment.

Article 45 says that the state to provide early childhood care and education. Somehow this goal is fulfilled through Article 21A and through RTE Act.

Article 51A(k) imposes a fundamental duty upon parents to provide all necessary educational opportunities to children.

Furthermore, there were various statutory frame work regarding the child labour and there welfare: –

The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, further amended in 2016 prohibits the employment of children below 14 years in all occupation but not from innocent work. After that in the year of 2009, our legislature enacted a law i.e. The Right of Children to free and Compulsory education Act,2009 to ensure Article 21A. The Juvenile Justice (Care and Protection of Children) Act,2015 which provides protection, rehabilitation and care for children who are abandoned, exploited or neglected.

Further more there were time to time Judiciary also interpreted child rights as an important right under Article 21A.  In the very famous and landmark case of M.C. Mehta v. State of Tamil Nadu (1996), in this case the Supreme Court directed the state to identify working children in hazardous places like firecracker factories etc and to ensure their rehabilitation and provide educational facilities. The court also ordered the government to establish a Child Labour Rehabilitation Welfare Fund, make a law for employers to deposit a fine for each child employed illegally, and directed improvements in education, health, and nutrition for affected children. The court recognised that child labour cannot eliminated merely through prohibition, rehabilitation and education are equally important for this.

In another case i.e. Bandhua Mukti Morcha v. Union of India (1984),  the court expanded the meaning of right to life by making obligation towards the state to protect vulnerable children from exploitation and bonded labour. The court further stated that the construction work comes under the hazardous work under Article 24.

International aspect for Child Labour: –

When we come to international aspect regarding the child labour, we found that India is a party to several international instruments protecting children’s rights, including

United Nations convention on the Rights of the Child (1989),

ILO Convention No. 138 concerning the minimum age for employment,

ILO Convention No.182 concerning the worst Forms of child labour

These are the few laws which makes obligation over India to eliminate the child labour and guarantee access to education.

Education as a hope for eradicating the child Labour

With the help of Education children gets knowledge, skills, confidence and opportunities which help them to break the cycle of poverty. With the help of universal access to quality education reduces child labour by keeping children in schools instead of workplaces. Various government schemes such as Right to Education Act, Mid -Day meal scheme, scholarships and child protection programmes have improved enrolment.

Despite all that there is a gap between legal framework and ground reality the persistence of child labour in India reveals a wide implementation gap. Authorities in India rarely use the Bonded Labour System (Abolition) Act of 1976, and also there is no clear direction from the central government that cases of underpaid child labour should be prosecuted under all applicable laws simultaneously. The result is that enforcement is fragmented and inconsistent. UNICEF also highlighted that there is not the enough number of school and colleges, classrooms and teachers in India which provides a quality of education. Along with that there were other reasons also sufficient labour inspectors, economic pressures forcing families to depend on children’s income, administrative fragmentation across multiple departments, persistent social norms that consider certain forms of child work acceptable, and schools failing to retain children  these together explain why child labour persists despite strong constitutional provisions.

Conclusion

Putting the various constitutional provisions shows a genuine and serious commitment against the child labour. And it is more effective when it is placed in the fundamental right chapter rather than putting in DPSP (Directive Principle of State Policy) which is non-justiciable. When we put these rights in fundamental right it provides a legal weapon to the child as well as society to fight against the exploitation in the courts. But on the other hand, some loopholes are still there such as the Interpretation of Article 24 is narrow it only talks about the hazardous work but what about the non-hazardous work which is happen generally still it is unaddressed topic.

The definition of child is still having various age, penal laws say different age, labour laws having different and other statutes having different number. There is no constitutional provision which criminalised the child labour and the person who took benefit from them.

References                            

1. Constitution of India.
2. Child and Adolescent Labour (Prohibition and Regulation) Act, 1986(amended in 2016).
3. Right of Children Free and Compulsory Education Act, 2009.
4. Juvenile Justice (Care and Protection of Children) Act, 2015
5. C. Mehta v. State of Tamil Nadu, (1996) 6 SCC 756
6. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
7. United Nations Convention on the Rights of the Child, 1989
8. ILO Convention No. 138 (Minimum Age Convention).
9. ILO Convention NO.182 (Worst Forms of Child Labour Convention).