Right To Access Internet Is Part Of Right To Privacy And Right To Education: Kerala HC

It is highly remarkable that the Kerala High Court has just recently on September 19, 2019 in a latest, landmark and extremely laudable judgment titled Faheema Shirin RK Vs State of Kerala and others in WP (C) No. 19716 of 2019 (L) has taken a giant step forward by declaring clearly, categorically and convincingly that right to access internet is a fundamental right forming part of right to privacy under Article 21 of the Constitution of India. This commendable judgment was delivered by a single Bench of Justice PV Asha while allowing a petition filed by a student named Faheema Shirin challenging the unwarranted restrictions on the usage of mobile phones in a girls hostel.   The Kerala High Court also added that it also forms part of the right to education. Very rightly so!

To start with, the ball is set rolling in para 1 of this commendable judgment which briefly states the background of the case by saying that, “A 3rd semester B.A. student of Sree Narayanaguru College, Chelannur, Kozhikode, has filed this Writ Petition aggrieved by her expulsion from the hostel. It is stated that she has been staying in hostel run by the college which is an aided college affiliated to University of Calicut. It is stated that the inmates of the hostel were not allowed to use their mobile phone from 10 p.m. to 6 a.m. within the hostel and that undergraduate students were not allowed to use laptop also in the hostel. While so from 24.06.2019 onwards the duration of the restriction in using the mobile phones was changed as 6 p.m. to 10 p.m. The petitioner claims that though she, along with other inmates of the hostel, met the Deputy Warden – the 5th respondent, requested to convene a meeting of the inmates, explaining the inconveniences caused to them on account of the restrictions, the Deputy Warden or the matron did not respond. It is also stated that though a meeting was convened within a week thereafter, no discussion was made regarding the restriction of the electronic devices. It is stated that the 5th respondent sent a Whatsapp message informing that those who do not abide by the rules would have to vacate the hostel. The petitioner claims that she thereupon approached the Principal on 03.07.2019 and submitted Ext.P2 letter requesting to relax the restrictions. Thereupon, Ext.P3 letter was obtained from her in writing to the effect that she was not willing to abide by the new rule restricting usage of phone between 6 p.m. to 10 p.m. Thereupon her parents were asked to meet the Principal on 05.07.2019; the 4th respondent informed them that the petitioner has to vacate the hostel as she refused to abide by the rules; Ext.P4 memo dated 05.07.2019 was issued to her directing her to vacate the hostel immediately; respondents 4 to 6 convened a meeting of the hostel inmates on 08.07.2019 when the students were informed about the action taken against the petitioner based on her request to relax the rules and that the inmates were asked to give in writing their willingness to abide by the restrictions when all the hostel inmates except the petitioner submitted such willingness; on 11.07.2019, Ext.P5 notice was issued to the petitioner directing her to vacate the hostel within 12 hours; on 15.07.2019, the petitioner submitted Ext.P6 leave letter for the period from 12.7.2019 on 15.7.2019, as it was not possible for her to attend the classes since she had to travel nearly 150 km every day; when the petitioner reached the hostel on 15.7.2019 to vacate her room, it was seen locked and the hostel authorities did not allow her to take her belongings.”

Before proceeding ahead, it would be useful to mention the names of all the 7 respondents. They are as follows: –

1. State of Kerala represented by the Secretary;

2. University of Calicut represented by its Registrar;

3. University Grants Commission represented by its Secretary;

4. Principal Sree Narayanaguru College, Chelannoor, Balussery, P.O. Kozhikkode;

5. Deputy Warden, Women’s Hostel, Sree Narayanaguru College;

6. Matron, Women’s Hostel, Sree Narayanaguru College; and

7. SFLC.IN represented by its Executive Director, New Delhi.

No doubt, it is rightly pointed out in para 8 that, “The question to be considered is whether the restrictions imposed by the hostel authorities on use of mobile phones while enforcing discipline has infringed the fundamental rights of the petitioner, even assuming that such modification was brought about at the request from the parents.”

Going forward, it would be useful to have a quick look at the relevant part of para 9 which states that, “However in this case the question to be examined is whether such enforcement of discipline by restricting the use of mobile phones would result in curtailing the right of the students to acquire knowledge by different means. Using of mobile phones by itself would not cause any harm to anyone. If a restriction is unreasonable and arbitrary and infringes the fundamental right of an inmate, it cannot be said that the student has to abide by such restriction, especially when the inmate is an adult.”

Furthermore, while examining the impact of using mobile phone in hostel, it is then enunciated in para 10 that, “It is therefore necessary to examine whether usage of mobile phone during 6 pm to 10 pm would amount to indiscipline and whether the refusal to abide by the instruction in using it should result in expulsion from the hostel. It is stated that the object behind introducing such a restriction is to see that the students are utilizing their study time for study purposes alone. The respondents have not stated whether usage of mobile phone by the petitioner or by any inmate caused any disturbance to other inmates. Therefore, indiscipline comes only to the extent of disobedience of an instruction. Then the question is whether an instruction or restriction can stand in the way of acquiring knowledge by the inmates. It is also necessary to examine whether they can utilise the study time for study purposes using the mobile phones also, in this advanced world of technology. The college authorities as well as parents should be conscious of the fact that the students in a college hostel are adults who are capable of taking decisions as to how and when they have to study. It is a fact that there is large scale misuse of mobile phones; but that misuse can happen with the laptops also; it can be even before 6 pm and 10 pm, before and after the study time.”

While underscoring the growing indispensable importance and necessity of mobile phones in routine life, it is then rightly pointed out in para 11 that, “The mobile phones which were unheard of once and later a luxury has now become part and parcel of the day to day life and even to a stage that it is unavoidable to survive with dignity and freedom. Though initially it was a mere replacement of land phone enabling one to connect another and talk, on the advent of internet the connectivity became so wide. On availability of more and more facilities, since the year 1998, the number of users gradually increased and as at present India stands 2nd in the world in the usage of internet. The facilities to access internet, which was initially possible only through desktop computers, later in laptop, is now available in mobile phones which are handy and portable; with more and more applications, connectivity became feasible for everyone everywhere even among the common man. Apart from the facilities to read E-newspapers, e-books, etc. one can undergo online courses also sitting at home or hostel and it is pointed out that there are courses under SWAYAM recognized by the UGC, which students can undergo even when they are undergoing regular studies in colleges. Though the respondent college has stated that there is no restriction for the inmates to use laptops, all the students would not be ordinarily able to afford to have a laptop in addition to mobile phone. Assuming that the purpose is to prevent misuse of mobile phones during study time, such misuse is quite possible with laptops also. Thus the purpose of such restriction would not be achieved. It would not be proper for the college authorities to impose such restrictions on students of the college going age even if it is at the request of parents, in their anxiety to see that their children are studying and not being misdirected through mobile phones. It is a well known fact that these phones as well as the modern technologies are prone to misuse. At the same time, the college authorities as well as the parents cannot be permitted to shut their eyes on the innumerable advantages out of internet on various aspects of learning with world wide connectivity, on its proper usage. Apart from facilities for interaction, exchange of ideas or group discussions, there are several methods by which the devices can be usefully utilised by its proper use by downloading of data or e-books or undergoing other courses, simultaneously utilising the facilities under the Swayam program of UGC, etc; knowledge can be gathered by adopting the method which one chooses. When one student may be interested in garnering knowledge by reference of books in libraries, one may be interested in referring to e-books or downloading data.”

While batting for more freedom for students above 18 years, it is then rightly articulated in para 12 that, “By compelling one that she should utilise the books in the library during the study time or that she should not access the technological means during a particular time or study time may not always yield positive results. A student above the age of 18 years shall be given the freedom to choose the mode for her studies provided it does not cause any disturbance to others. The schools in Kerala promotes digitalisation with smart class rooms and the modern technology has taken its place in all the fields even from primary section. Thus the usage of mobile phones in order to enable the students to have access to internet will only enhance the opportunities of students to acquire knowledge from all available sources based on which they can achieve excellence and enhance quality and standard of education.”

While quoting liberally from the landmark cases, it is then pointed out in para 15 that, “As found by the Apex Court in Charu Khurana v. Union of India (2015) 1 SCC 192, women still face all kinds of discrimination and prejudice and the days when women were treated as fragile, feeble, dependent and subordinate to men, should be a matter of history.” Similarly, it is then held in para 16 that, “In the judgment in Puttaswamy’s case (supra) the Apex Court held that right to privacy is held to be an intrinsic part of the right to life, personal liberty and dignity and hence a fundamental right under part III of the Constitution.”

Be it noted, para 18 then envisages that, “Though it is true that the Principal of the college is the supreme authority to enforce discipline as held by this Court in Manu Wilson’s case, Sojan Francis’ case, Indulekha Joseph’s case (supra) and that there cannot be any dispute that rules and regulations lawfully framed are to be obeyed by the students and that teachers are like foster parents who are required to look after, cultivate and guide the students in their pursuit of education for maintaining excellence of education, the rules should be modified in tune with the modernisation of the technology so as to enable the students to acquire knowledge from all available sources. It would be open to the authorities in the hostel to supervise whether any distraction or disturbance is caused to other students on account of usage of mobile phone or take action when any such complaint is received. The total restriction on its use and the direction to surrender it during the study hours is absolutely unwarranted. When the Human Rights Council of the United Nations have found that right to access to Internet is a fundamental freedom and a tool to ensure right to education, a rule or instruction which impairs the said right of the students cannot be permitted to stand in the eye of law.”

What’s more, it is then eruditely pointed out in para 19 that, “It is pertinent to note that the learned counsel for the college vehemently argued that in the absence of any challenge to the rules and regulations, the petitioner cannot be heard to challenge the action taken in accordance with the rules. The learned counsel for the college also argued that in the light of the judgment of the Full Bench of this Court in Pavitran VKM V. State of Kerala & others 2009(4) KLT 20: 2009(4) KHC 4, the rules and regulations of the hostel will stand as long as it is not set aside. But in this case the rule was that the mobile phones shall not be used in the hostel. Therefore, what remains is only the decision/instruction restricting/banning the use of mobile phone from 6 pm to 10 pm and the direction to surrender the mobile phone to the warden. When it is already found that such an action infringes the fundamental freedom as well as privacy and will adversely affect the future and career of students who want to acquire knowledge and compete with their peers, such instruction or restriction cannot be permitted to be enforced.”

To put it succinctly, para 20 then states unambiguously that, “While enforcing discipline it is necessary to see the positive aspects of the mobile phone also. As held by this Court in the judgment in Anjitha K. Jose’ case (supra), the restriction should have connection with the discipline and when there is nothing to show that there was any act of indiscipline on account of the usage of mobile phone by the petitioner, that cannot stand. The fact that no other student objected to the restriction or that all others obeyed the instructions will not make a restriction legal if it is otherwise illegal. No student shall be compelled either to use mobile phone or not to use mobile phone. It is for each of the students to decide with self confidence and self determination that she would not misuse it and that she would use it only for improving her quality of education.”

While adding a word of advice for parents, hostel authorities and students, para 21 then states that, “The parents as well as the authorities of the hostel have to consider the fact that almost all the undergraduate students staying in the hostel have attained majority. They have joined the course after passing one or two public examinations. The students in that age group are expected to be conscious of their duty to study properly in exercise of their right to education. The manner in which as well as the time during which each person can study well, vary from person to person.”

More importantly, Justice PV Asha who delivered this landmark judgment then categorically observes in para 22 that, “I am of the view that what is required is a counseling for the students, as well as parents in the colleges. The students in the hostels should be given counseling in order to inculcate in them self restraint in the usage of mobile phones, to make them capable of choosing the right path, to make them aware of the consequences of misuse as well as advantage of its proper use. It should be left to the students to choose the time for using mobile phone. The only restriction that can be imposed is that they should not cause any disturbance to other students. While acting in exercise of right to privacy, persons like the petitioner shall also see that such exercise does not invade the right to privacy of another student residing in the hostel especially in her room.”

While spelling out the boundaries for enforcement of rules and discipline, it is then observed in para 24 that, “Regarding the contention of the respondent that any inmate is bound to abide by the rules and regulations or else she is free to leave the hostel, it is pertinent to note that rules and regulations require reforms to cope up with the advancement of technology and the importance of modern technology in day to day life. As per the University Regulations as well as the UGC Regulations, the college is bound to run a hostel to enable the students to reside near the college in order to enable them to have sufficient time to concentrate in their studies. Therefore, the hostel authorities are expected to enforce only those rules and regulations for enforcing discipline. Enforcement of discipline shall not be by blocking the ways and means of the students to acquire knowledge.”

Finally, it is then held in the last para 25 that, “In view of the aforesaid reasons, I am of the view that imposing of such restrictions is unreasonable and therefore the respondent shall re-admit the petitioner in the hostel without any further delay. It is made clear that the petitioner or her parent shall not do any act in a manner humiliating any of the respondents or any other teacher or warden or Matron in the hostel/college. The petitioner or any other inmate shall also see that no disturbance is caused to others by usage of mobile phone in the hostel. The Writ Petition is allowed to the above extent.”

In the ultimate analysis, what can be easily inferred from the above foregoing discussion is that the Kerala High Court has laid down in no uncertain terms that right to access internet is part of the right to privacy under Article 21 of the Constitution of India and also the right to education. We all know fully well how crucial internet is to acquire invaluable information about anything which cannot be acquired from other sources so easily which makes it all the more important!

It also cannot be denied that even the UN General Assembly had declared right to internet to be a human right in 2014. Even the Kerala Finance Minister Dr Thomas Issac in 2017 in his budget speech had recognized right to internet as a human right and had disclosed that efforts were being made to make internet accessible to all. The only restriction that can be imposed is that the students using mobile phones should not cause disturbance to other students! This was made clear by the Kerala High Court also in this commendable judgments and all students must adhere to it!

Sanjeev Sirohi

Child Labor -An Enigma,Still Requires Introspection

Adrish Guha Majumder

ABSTRACT

Taking a view of the present scenario of child labor in India, related laws and its shortcomings, the article deals with the subject of child labor which is an enigma now a days in India and in the world scenario. It introduces itself with the definition of child labor, its causes, practice, problems and consequences of the same. It takes into consideration the various measurements taken to curb this problem. It canvasses the legislative, administrative and judicial actions . It briefly explores through the provisions specially for the child welfare, directive principles and the specific child labor laws as a part of the legislative actions .It encompasses the national law commission reports on child labor and the international conventions . It talks about the 11th five year plan enacted to curtail the evils of child labor. It cites the examples of the ILO (international labor organization) reports and views on the concerned topic under administrative actions . As a matter of confirmation and implementation of the laws, the article converse about the previous court cases as a part of the judicial actions. These laws were enacted but unfortunately it is not effective because of the half hearted measures and lack of implementation. It cites various examples where it can be seen that, instead of various measures taken , the problem of child labor is increasing paying no heed to the measures. The law has been lacking in constant work-force and it is very important to combat the main problems that are prevailing now a days and thus it need to be amended and modified according to the situation. The article itself gives some remedies and suggestions to restrain the problem to some extent as possible with the help of law.

 

1. INTRODUCTION

‘Share is no trust more sacred than the one the world holds with children. There is no duty more than ensuring that their rights are respected, that their welfare is protected, that their lines are free from fear and want and that they grow up in peace – Kofi A. Annan

 

i. What is the Importance of child welfare in the present civilized society?

In a layman language, civilized society means a society or a community which is enriched with substantial amount of culture in it. Now this amount of culture , its growth and development depends on the well being of a child. A child is full of vigor and this should be nurtured to get the best benefits. They should be provided with congenial atmosphere around them for their proper growth.

The child is a soul with a being, a nature and capacities of its own , who must be helped to find them , to grow into their maturity, into fullness of physical and vital energy and the utmost breadth, depth and height of its emotional, intellectual and spiritual being; otherwise there cannot be a healthy growth of a nation

It should be ensured that behind the mask of social service or upliftment and evil design of child trafficking is not lurking. It is the duty of the State to ensure a safe roof over an abandoned child

ii. What is child labor?

Generally child labor is the activity they perform ( objectionable) , which exploits them mentally, psychologically, physically. There are no universally accepted definitions of child labor, it varies. According to some social scientists child work is always unobjectionable, suppose a poor child is working in a stationery shop helping the owner, then it is not child labor but if in this case this little child is not paid or has been forced by the owner to do other hectic tasks then the child becomes a child labor. The moment the activity leads to the exploitation of the child resource then it becomes rigidly objectionable. According to U.N conventions child labor means all the activities regarding soldiering and prostitution. But in this case prostitutions is not considered as child labor because these are the utter illegal sources and this is only practiced in case one do not have any other options to choose.

A large number of children work in cottage industries producing carpets, matches, firecrackers, bidis, brassware, diamond, glass, hosiery, hand loomed cloth, embroidery, leather goods, plastic, bangles and sporting goods

iii. Classification of child labor

Child labor can be classified into child labor, street children, bonded children, working children and children for sexual exploitation as given by the 11th five year plan by the national commission for protection for child rights.

A recent state wise figure reveals that Andhra Pradesh topped the list with over 19 lakh child labor followed by Madhya Pradesh, Maharashtra, Uttar Pradesh, Karnataka and Bihar, each accounting for over two lakh

iv. Who is a child?

Like the definition of child labor , child also don’t have a particular precise definition. An universal definition of child was given by the constitution to fit all the situations and the definitions are allowed to vary with the laws, contexts and situations .

International conventions describe ‘child’ as any person who is under 18 years of age.

A child is one who has not completed 15 years of age

‘Child’ means a person who has not completed his fourteen year of age . Again the census also treats persons below the age of fourteen as children. The constitution of india debars a child below the 14 years to be employed in any factory or mine or any hazardous employment. ‘Child’ means a person who, if a male has completed 21 and if a female not completed 18 years .

v. Issues with child labor

Stunted growth for future generation: children are exploited only when they are being forcefully employed to any objectionable tasks. This really hampers the decent growth of the child and thus it do not give the space to build a bright future generation

Effecting human rights: in our legislation there are the constitutive rights of a child. Again in there are certain rights as in human beings are born free, right to life , liberty and security , right to recognition , no one should be subjected to torture or cruel, inhuman or degrading treatment or punishment . Right to survival, right , property , promoting high standards of health and nutrition , mental health should be protected , right to play and leisure

 

Effecting RTE(right to education): In the Indian constitution, article 45 deals with the compulsory education that the state shall Endeavour to provide early childhood care and education for all children until they complete the age of six years. Again in article 46, it deals with the promotion of educational and economic interest of scheduled castes, scheduled tribes and other weaker sections. Clearly, child labor violates the articles concerned.

Other than that the serious consequences are inability to harness human resources, adult unemployment, perpetuation of poverty, increased illiteracy , affecting the health and nutrition of the child, perpetuation of ill-treatment

 

Child trafficking:

In this era child trafficking is at the grass root level, child trafficking is the transportation, transfer, recruitment of children. This is generally done by act of coercion. They are trafficked generally so that the owner can have the work done by them without proper payments. Child labor is a part of the child trafficking.

Due to this, judicial activism has taken some steps to confront child trafficking and thus there was immoral trafficking act 1986. In a certain case, the H’onble High Court of Bombay observed that the traffic in children is not confined only to what larger scale than innocent Members of this House may be aware – in what is known as White Slave traffic, namely, the buying and selling of young women including minor girl for export or import, from one set of countries to another; and their permanent enslavement or servitude to an owner or proprietor of the establishments of commercialized. In addition to this it was held by H’onble Supreme Court that a proper cell be created by Women and Child Welfare Department of the State of Maharashtra in order to rehabilitated victim of trafficking in society and proper vigilance that should be acted upon periodically

In another case it was observed that children, who are being likely to be grossly abused, tortured or sold for the purpose of sexual abuse or illegal acts they will have to be produced before the Child Welfare Committee. Furthermore, the H’onble High Court of Bombay gave directions to state for Rehabilitation these victims of trafficking

Another gross problem of child labor leads to sexual exploitation. This generally happens with the young female child who is treated as mere goods and is transferred to brothels every year and they are only used as the characters of the sex industry prevalent in India. For this immoral trafficking resulting to prostitution there is one law enacted ‘suppression of immoral traffic in women and girls act of 1956(SITA)

This child trafficking problem cannot be restrained in isolation. The judiciary should take some survey about the subject to get the perfect figure of the child trafficking cases happening. it is a pernicious social ill, so it needs very stringent regulation governing it , the government as well as the non-governmental organizations should be a rigid watchdog for the same.

 

LEGISLATIVE MEASURES-

The problems of child labor are prevailing for many years even times before the drafting of the constitution. So the role of constitution as a major part of social justice also very much includes granting justice to the children resulting in the incorporation of some special provisions to ensure justice to the children.

‘Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth’(article 15). But clause (3) of article 15 serves an exception to the respective article. It states that the ‘nothing in this article shall prevent the state from making any special provisions for women and children.

Right to education has been made as a fundamental right (article-21A) by constitution (86th amendment) Act 2002. In this context the court observed that right to basic education is implied by the fundamental right to life (Article 21), when read in conjunction with the directive principle on education (Article 41). The Court held that the parameters of the right must be understood in the context of the Directive Principles of State Policy, including Article 45 which provides that the state is to Endeavour to provide, within a period of ten years from the commencement of the Constitution, for free and compulsory education for all children under the age of 14 . So, the child is also entitled to enjoy all the fundamental rights.

Prohibition of traffic in human beings and forced labor (article 23). Though this article do not talk specifically of children but they are necessarily included because now a days children are the most trafficked . their exploitation results in the violation of the above article.

Prohibition of employment of children in factories(article 24) . no child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment as an additional security ensuring the proper justice to a child. In this context the Supreme Court directed that the employers of children below 14 years must comply with the provisions of the Child Labor (Prohibition and Regulation) Act providing for compensation, employment of their parents / guardians and their education

 

DIRECTIVE PRINCIPLES OF THE STATE POLICY

The underlying principles of the directive principles of the state policy is ‘ to fix certain social and economic goals for immediate attainment by bringing about a non-violent social revolution’ . it is also under the directive principles of the state policy where it has been tried to come into force some provisions in part IV to promote justice and equality in life, also in case of child labor

That the health and strength of workers , men and women , and the tender age of children are not abused and that the citizens are not forced by economic necessity to enter avocations unsuited to their age or strength (article 39e).

That the children are given opportunities and facilities to develop in a healthy manner and conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment (39f). in this context there was a case where the main issue under consideration of this case was relating to welfare measures for laborers working in mining leases. The court laid down comprehensive measures for the rehabilitation and supportive working environment of the laborers working in mine leases

Provision for early childhood care and education to children below the age of six years( article45). Promotion of the educational and economic interests of scheduled castes, scheduled tribes and other weaker sections of the society. (article 46)The children are trafficked and are worst sufferers who belong to these category of people because of the poverty and backwardness they face very often, so this will be effective in facing the problems child labor also.

Duty of the state to raise the level of nutrition and the standard of living and to improve public health (article 47). As this principle is there to effect the better health of the public very much directs towards the better health of a child also, because this is very inevitable in case of children.

 

CHILD LABOR LAWS

THE CHILDREN (PLEDGING OF LABOR) ACT, 1933

extended over all India except Jammu and Kashmir, but after sept1,1971 it has been executed to Jammu and Kashmir also. It brought into light the conditions under which the children worked. It has been very often noticed that the labor of the children is being pledged by their parents in lieu of some benefits, basically economic benefits. main object of this act is to eradicate the evils arising from the pledging of child labor generally done by their parents or employers in lieu of certain loans and advances. After this enactment, any person making such type of agreement should not taken into consideration any more rather than they will be subjected to penalty under this act.

THE EMPLOYMENT OF CHILDREN ACT, 1938

is applied to whole of India. To prevent overtime, unhealthy environment and hazardous employment of children, it was enacted .The act fixed the minimum age at which children work in passengers, goods or mails by rail or in the handling of the goods at dock wharves or quays at 13 years. The act also prohibited employment of children under 15 years of age in occupations connected with the transport of goods passengers or mail on railways. The minimum age for handling goods for stocks was raised from 12 to 14 years which was the age fixed by Indian ports act 1908. The period of rest was to include at least 7 consecutive hours between 10 pm and 7 am, prescribed in it.

CHILD LABOR ( PROHIBITION AND REGULATION) ACT 1986

was actually enacted to regulate the working conditions under which the children work under exploitative conditions. This act prohibited the children from work under the age of 14 years. According to section 3 of the act, it prohibits the children to work in certain occupations and environment as specified in the schedule of banned occupations as per part A of the schedule to this act. Part B of this act has added one more process into the existing list and that is ‘building and construction industry’ all are same as the existed one. There is also some mentioned process where no child is permitted to work as per section 2 of the act. Punishments are also provided by section 14 of this act where there is fine up to twenty thousand in case of any employments contravening section 3 of this act. Any police officer has the right to file a complaint of an offence under this act in any court of competent jurisdiction

FACTORIES ACT, 1948

defines a child as one who has not completed 15 years of age. This is an absolute prohibition of employment of a child who has not completed his fourteenth year. The acts prohibits a child to do certain works as per section 22(2) of the act. Prohibition of a young child in employing or dangerous machines as per section 23 of this act. Prohibition of employment of women and children near cotton openers as per 27 of this act. Provides for token to be supplied by employers and kept by non-adult workers as per section 68. It also provides for certificate granted to an adolescent workman that he is an adult as per section 70. Specific working hours for children as per section 71. Section 75 of this act also empowers the inspectors to require any such person for re-examination by surgeon and he may prohibit the employment.

MINES ACT, 1952

includes the excavations where some obtaining or extraction is going on including all bearing, bore-holes and oil well, all levels of inclined plans in the course or being driven in or adjacent to and belonging to a mine. It strongly prohibits the children to perform this type of work. He/she is only then allowed when they are above 16 years of age and they have a medical certificate of their own which is only valid only for 12 months as per 43 of the act. It also provides working hours for adolescents as per section 44 of this act. It also instructs and empowers inspector to take medical examination of a person employed in a mine if a child or adolescent. Section 68 of this act provides for penalty for employment of children under 18 years of age which contravenes section40 of this act which prohibits the employment of a child under the age of 18 years and the convicted is punishable with fine up to five hundred rupees.

MERCHANT SHIPPING ACT, 1958

prohibits employment of children below 15 years on sea going ships. Here no person(young) should not work as a stoker or trimmer as per section 110. Medical inspection is mandatory as per section 111. It also empowers central government to make rules respecting the employment of young persons. As per section 113 of this act.

APPRENTICE ACT, 1961

is to regulate and control the training undergone by the apprentice in the course of business. As per the act an apprentice is ‘as a person who is undergoing apprenticeship training in a designated trade in pursuance of control of apprenticeship’ the act prohibits any person to go internship who is below 14 years of age. In this context, the government has identified 56 trade for the purpose of this act.

BIDI AND CIGAR WORKS (condition of employment) ACT, 1966

also defines a child as a person who has not completed 14 years of age. Section 24 of this act ensures the enforcement of better work conditions for children connected with the manufacturing of cigar and bidi. In this act the children between 14 and 18 years are prohibited to work between 7 pm and 6 am as per section 25 of the act. Section 14 of the act also provided for maintenance of crèches and other facilities for children under the age of six years of female employees. Canteen, first aid, cleaning and ventilation are also incorporated in this act.

MOTOR TRANSPORT WORKERS ACT, 1961

prohibits the children under 15 years of age in any motor transport undertakings. In case of adolescent it also provides for certificate of fitness as per section 23 of this act and it also empowers inspectors to take medical examinations of employed adolescent as per section 24 of this act.

Legislative measures have been also taken to ensure the payment of minimum wages to labor. There are two central laws which impose certain obligations on employers and management in the field of wages. Payment of wages act, 1936 ensures regular and prompt payment of wages to employees and prevents exploitation of wage earner against arbitrary deductions and fines.

The minimum wages act 1948 imposes certain obligations on employers and managers in the field of wages and requires the central and state government to fix a certain minimum amount of wage in certain scheduled employments. The act also seeks to prevent ‘sweated labor’ to prevent the exploitation of employees and secure them in the enjoyment of minimum wages. This act ensures justice to those child labor who are not paid properly under coercive conditions

BONDED LABOR SYSTEM (ABOLITION) ACT, 1976

provides the abolition of bonded labor system with a view to preventing the economic and the physical exploitation of the weaker section of the society. As amended by the bonded labor system act (73 of 1985) section 4 of the act declares abolition of bonded labor system and lays down that the system shall stand abolished and every bonded labor shall on such commencement stand freed and discharged from any obligation to render any bonded labor. Enforcement of bonded labor also made punishable under section 16 with imprisonment for a term which may extend 3 years with fine which may extend to two thousand rupees.

Section 371 of IPC provides against habitual dealing of slaves in case of imports, exports, buys, sells should be punished with life imprisonment or with imprisonment of either description for a term not exceeding ten years and should also be liable for fine.

INTERNATIONAL LABOR ORGANISATION AND CHILD LABOR

ILO (INTERNATIONAL LABOR ORGANISATION) COMBATING CHILD LABOR

The International labor organization was set up in 1919 under the League of Nations and has been playing an important role in combating child labor. Mainly it has been focusing on five main issues like prohibition of child labor, protecting child labor at work, attacking the basic causes of child labor, helping children to adapt to future work, protecting the children of working parents .

The general conference of ILO as WORST FORM OF CHILD LABOR CONVENTION, 1999 considers the need to adopt various instruments so as to combat child labor, Effective elimination of the children working in such conditions and provide for their social rehabilitation, deciding upon some certain proposals with regard to child labor. In article1 it is stated that each member should take immediate effective measures to secure the elimination of child labor. The child shall apply to all persons who is under the age of 18 years (article 2). All forms or similar to slavery, trafficking of children, debt bondage, prostitution of a child, pornographic activities, trafficking of drugs etc. are termed as the worst forms of child labor as per article3. The members should establish and design measures to monitor the implementation of the existed provisions, the action, measures should be in consultation with proper government institutions to make it more relevant and finally the formal ratifications of the conventions should be communicated to director-general of international labor office.

After the widely ratified convention against the worst form of child labor, the ILO has been well equipped to multiple challenges involved by trafficking process. It takes on Special Action Programme to Combat Forced Labor (SAP-FL) and International Programme on the Elimination of Child Labor (IPEC). At that time the main concern of public was the then trafficking of the young female child from Albania, Moldova and Ukraine. The coercion by the traffickers on the female children was really very repulsive, even today also in every parts of the world a stringent investigation can bring into light thousand of these cases regarding child trafficking. One of the benchmark is the forced labor convention no.29 of 1930, this provides a clear definition. Under the convention a forced labor is that ‘all work or services exacted from any person under the menace of penalty and for which the said person has not offered voluntarily’ child labor forms a very major part in violating the human rights. Now a days it is surging rapidly. Even children are trafficked across borders to perform some other kind of work also. There are four major action steps taken by ILO like data collection and analysis, policy development and direct support including educational opportunities, community mobilization and outreach. Community mobilization is very important for proper monitoring the problems, it means community level governance for example in Philippines there are barangays are effective community mobilization only for children. This helps in clear positioning and implementation of plans to combat the problems.

The international labor organizations adopted the minimum age recommendation act, 1973 and have discussed certain elements about the topic. It gives priorities to planning and meeting the needs for children through all the national development policies regarding employment oriented programmes, ensuring better living standards, child allowances, proper educational opportunities. It also speaks about the minimum age that should be fixed in all kind of economic activities. The members should take as their objective to raise the age standard to 16 as per article 2 of the act. The conditions of employments should be measured whether they are satisfied or not. They should keep a watch whether the children are being undergoing through practical training session to keep a very safe and protective environment.

India is a signatory to the Universal declaration of human rights (UDHR), 1948. This is a common standard for all people and nation which comprises of human rights and fundamental freedom. It defines about the right of the human being to born free, equal dignity and rights and the spirit of brotherhood should also be present as per article 1. It speaks about the right to life, liberty, security of a person. Exposure to slavery and servitude shall be strongly prohibited. It is not acceptable for arbitrary detention and exile of any person. One is entitled in full equality to a fair and public hearing by an independent and impartial tribunal according to article 10 of the act. Everyone has the right to protection against any interference against his/her privacy, family or home. He/she has the full right to leave his/her own country and can return also according to the will. Everyone has the right to nationality and no one should be intentionally deprived of the nationality as per article 15 of the act. Everyone has the right to his own property and no one can be deprived of his property as per article 17 of the act. Everyone has the right to freedom of opinion and expression. They have the right to peaceful assembly and association and there should not be any compulsion to belong to an association. There is the right to social security for the members for the same. Including reasonable limitation of working hours and periodic holidays with pay, everyone has the right to rest and leisure as per article 24 of the act. With the adoption of the act, the human rights have been intensely implied for the betterment of all the human beings, specially the children who suffer the most.

The general assembly of the United Nations adopted the united nation declaration, 1959 on the rights of child where it mainly discussed about the physical and mental immaturity of a child needs special safeguard and cares before as well as birth so that the child can have a happy childhood enjoy for his good and for the society. In the principle1 it is said about the right to enjoyment of rights without any discrimination. It ensures a child’s right to special protection so that they can develop morally, mentally and physically. The child has the right to adequate nutrition and on the other hand he/she has the right to receive the early childhood care for survival, growth and development. The children who are physically disabled should be offered proper treatment and provided with proper educational opportunities. Free education is compulsory for every child, they must be provided with free primary education. There should not be any discrimination for children on the basis of race, caste. Status. Economy. There should be understanding, tolerance and brotherhood between them.

ADMINISTRATIVE ACTIONS

POLICIES FOR CHILDREN

The government of India has also adopted the National policy for children in 1971. It sets out the measures the proposals made by the government of India, to adopt the attainment of objectives that was set out earlier. It also includes actions that are designed to protect children from neglect, cruelty and exploitation. It mainly gives high priority towards the maintenance, well being, and education for the destitute children. It also stresses upon the vital role of the voluntary organizations that plays a vital role in imparting proper education, health services and social welfare to such children. The government should encourage these organizations that can help in the betterment of children. There are no. of programmes for the same. For example children from weaker section of society need special care, attention. Postulation for children who are deprived of the educational opportunities. Programme no. 7 directs the quality of opportunity. That it should be provided to children of all sections of the society including scheduled caste and scheduled tribes. Children with physical disabilities should be taken proper care with proper treatment, education and rehabilitation. Thus we can see that this policy is very effective and the international principles for the development of children are of utmost importance.

 

The National child labor policy, 1987

envisages strict-enforcement of the child labor (prohibition and regulation) act, 1986 for betterment of the condition of the child labor. It believes it in contemplating legal actions plans, general welfare and development plans on child labor and project based plan of action. Ten projects were taken to cover the sivakasi match industry, surat polishing industry, precious stone polishing industry of jaipur, Firozabad glass industry, brassware industry of Moradabad, carpet industry of bhadohi, lock making industry of Aligarh, carpet industry of Jammu and Kashmir slate industry in Madhya-Pradesh. Then the policy proposed that around 30000 children should be withdrawn and should be taken care by the government. The policy also increases this type of enforcing to create socio-economic situations which could diminish incidents regarding children being sent out to work.

 

The Convention of the right of the child (CRC), 1989

was unanimously adopted by the general assembly of the United Nation. The government of India ratified the convention. The CRC deals with the individual rights of the children less than 18 years of age to develop with full potential, free from hunger and want, neglect, exploitation and other abuses. It extends its provision to protect the child’s economic, social and cultural rights. The age of the child is specified (less than 18 years of age). The convention speaks about the parental guidance where the parents or the legal guardians have to provide the children in manner consistent with the evolving capacities of the child and guidance in the exercise rights of the child recognized in the conventions. The child should be registered immediately after birth and it has the right to nationality as per the convention. By this convention a child shall not be separated from its parents against their will and state parties should respect the right of the child who is separated from their parents to maintain personal relations and direct contact with both the parents on a regular basis except it is contrary to the child’s best interest. The child should be given the right to express their views, they have the right to share their own judgment accordingly and they should be given the weight age according to their level of maturity. The child has the right to freedom of association and peaceful assembly. Other than that there are articles where it has been discussed that the children should be protected from sexual abuse and economic exploitation, the child has the right to standard of living, social security and right to education.

The government of India has adopted the National Charter For Children, 2003 to reiterate its commitment towards eradicating the evils of child labor and exploitation. The intention of the charter is to secure the children the inherent rights and to ensure the healthy growth and development of a child which includes survival, life and liberty, promoting high standards of health and nutrition (the government should take a notice about the implementation of the health facilities and state should take the measures to implement proper health care and should aware preventively about diseases), assuring basic needs and supply( the government is there to ensure proper security for supply and needs for example- the authority should take the steps in supplying the basic materialistic needs by a street child), play and leisure, equality, freedom of expression, freedom to be in association, peaceful assembly and proper care for the children with disabilities.

 

The National Plan of Action for Children, 2005

makes out 12 key areas which should be grabbing greatest attentions. They are reducing infant mortality rate, reducing maternal mortality rate, reducing malnutrition among children, achieving cent percent civil registrations of the new born, complete abolition of female feticide and child marriage, all legal and social protection for children and monitoring, reform and review of the proposed and the implemented plans for the abolition of the problem.

 

The Integrated Child Development Service (ICDS). 1975

plays a unique role in the betterment of the life of children, they provide various programmes for the children. It was developed to improve the nutritional and health status of children in the age-group 0-6 years, to lay the foundation for proper psychological, physical and social development of the child, it aims at reducing incidence of mortality, morbidity, malnutrition and school dropout, achieving effective co-ordination of policy and implementation amongst the various departments to promote child development and to ensure about the proper health and nutritional needs of the children. They arrange various programmes like

Nutrition including supplementary nutrition: in this nutrition they generally monitor the growth and surveil the nutrition. The child in each family communities are weighted often with their age and they have with them the cards (measuring weights with age) , therefore it is easy for them to asses the nutritional status. They visit every family and there is a provision within themselves for feed supporting to families.

Immunization: it includes proper immunizations to the pregnant women, infants for various diseases that can affect them like tuberculosis, tetanus, hepatitis etc. thus this section of the policy is for prevention and precautionary measures for the diseases

Health checkups: proper and regular health check-ups are conducted for the betterment of the health of a child. They are transferred to their sub centers for the better governance on the concerned arrangements.

Non formal pre-school education- they arrange a village courtyard for the children. In these arrangement normally joyful activities takes place resulting in the pre-school development of a child. Generally it is a preparation towards the school and these mainly aim at the optimal development of a child.

They also arrange funds for the state (100 % in nutrition). Actually they are resource sponsored and they provide funds to the state. When the states are out of fund then they finance the state, further there are many conditions for their funding process.

THE ELEVENTH FIVE YEAR PLAN:

The 11th five year plan aims at better investment in the educational sector. It is proposed to allocate 1.25 lakh crore for education which is a major leap from 30000 crore of the last plan. It is expected for the plan to cover a its previous achievements and to ensure inclusive growth curbing the negative sections. But merely plans won’t fetch the absolute motive; it has to be perfectly implemented through all out the proposed sectors. Previously it was claimed to have spent through various ways for the development at elementary levels but there was no positive results for the same. The increment of fund is not the only step that has to be done; all the proposed plans fail only when there is lack of plan of allocation of resource like unless a previous defective structure is not refined then it is useless to invest for the establishment of a new unit. The children here are given training, nutrition and regular health check up. In this plan there is a condition for amendment of the child labor act 1986, that there should not be the use of world ‘regulation’ because in this case the child labor negotiation should be non-negotiable, the provisions must be increased and should be stricter. The child labor should not be tolerated any more. New child labor eradication policy should be revised, the child labor has to be abolished in all forms and children enjoying the right to education are non-negotiable. In case of national child labor programme, it also should be revamped in case of migrated students. The intra state migrated students should be provided with additional transitional educational centers (TEC). This should be the joint effort of the state. The 11th five year plan comes up with the topic of social mobilization where the children can be prevented from all the work force. The children should go to government formal schools rather than leaving the home for full day work. For the children to leave work , so that they can get the free elementary education , the prime need is the connection between all the departments like labor ,police ,education ,youth affairs, panchayti raj.. the synchronization between all those will actually bring the synergy to achieve the real motive.

 

JUDICIAL ACTIONS

The role of Indian judiciary and judicial interpretation has been very remarkable now a days because of the increasing statutory invention in the present scenario and the judiciary is very much successful in giving the justice to the needy.

The Supreme Court is the apex court and has been assigned a very important role, and constituted as a guardian of the constitution which is the yardstick of the ground norms of the legislation . It is the duty of the judiciary for the establishment of proposals through which the society or the nation can move forward very effectively. It is a matter of pride that the Indian judiciary system has been able to inaugurate the trust of the common people that is the reason why the people bring their grievances to the court. In case of child labor relating issues or issues affecting many child right infringements, relating to child exploitation etc. the courts have many cases which actually go side by side with the constitution and makes the respective law effective.

The child must be groomed well in the formative years of his life. He must receive education, acquire knowledge of man and materials and blossom in such an atmosphere that on reaching age, he is found to be a man with a mission, a man who matters so for as the society is concerned. In this case, the framers were aware about the prohibition of the child in national building work unless he/she receives the primary education and then there was the insertion of the article (article45) where it is ensured to provide the free education to the children. They should also be provided with proper care and should be financially helped like they should get the minimum wages.

There was another case regarding the employment of children in carpet industry in the state of Uttar Pradesh. The appellant proposed for the proper investigation of the fact. After observation the apex court interpreted that the child of today cannot develop today unless the assurance of physical and mental health. The court held that the every child irrespective of caste, age, birth, colour should have the right to health, well being and education.

In another case there was same observation where the children were subjected to right to health, meaningful right to life with fundamental rights .

This is the reference of another case where apex court receives a letter regarding the workers who were mainly related with the manufacture of beedi and cigar, the children were not given proper wage, shelter and protection which generally leads to child resource exploitation. When the court ordered the society to provide a report of the activities, then it was found that there were many defects in the report. later it was observed that the manufacture of this kind of things leads to hazardous effect on the concerned. The court has adjourned the case for around 8 weeks because of the ineffective implementation of the law and later designing measures to combat this problem was taken by the state, central and the counsel for the employers

There was a case in chattisgarh where a girl child was seen in manufacturing a beedi in her house. This case was taken to court and under the child labor prohibition act it is an offence for sure but it was yet to prove that the age of that girl was less than 14 years. There was no medical or valid argument to present that girl with in 14 years of age. Other than that, beedi manufacturing has two parts. One is to roll the bidi and other case is to supply the raw materials in case of the latter one, the raw material provider enroll themselves legally and there ia no offence in it but in this case as it was not proved that the girl was not below 14 years of age, that’s why the proceedings were quashed.

The same as the above case was also there in the state of U.P where a child was seen in the carpet industry working when the inspection was made by the enforcement officer but again the age proof of the child was not produced by the authority as a result the conviction was unsustainable.

Now we will discuss about a case in Madhya Pradesh where a petitioner is challenging when a fine of RS.20000 was imposed on him for child labor of 14 years of age. Generally prohibition of employment of children in factories says that a single child shall not work with an age less than 14 years of age and as the petitioner was employing a child who is 14 years of age is an offence indeed. So the challenge was not even taken into consideration.

In this case a child below the certified age was employed and was investigated by an officer whose appointment was visualized by section 17 of the child labor prohibition act, 1986 and anything which is contravening the child labor prohibition act, leads to the imposition of penalty of RS 20000 ( twenty thousand) which could be deposited in a fund of child labor

Very recently a petition was filed by the NGO ‘Bachpan bachao andolan’ regarding the prohibition of the children working in circus as mere labours. The supreme court issued a notification prohibiting all the children from working in circuses. It was under article 21 about the fundamental rights of these children.

The Indian government has banned the employment of children under age 14 as domestic servants or in hotels, restaurants or small tea shops in a bid to protect the rights of the children. It also prohibits the children from working in any motels, bars or any other recreational activities

Earlier in case of child labor, the sufferers don’t have that access to the court to express their grievances but now a child labor can easily reach the court and demand for his fundamental rights. This is only because of the locus standi of the court.

In a certain case, it is seen that the supreme court that the employment act of India does not feature the construction work because this is a type of hazardous work and under article 24 one under the age of 14 years is prohibited to act in such activities

SARBHA SIKHSA ABHIYAN

The scheme was adopted by the government of India to provide free education to all under 6 and 14 years of age. This is tagged with the state government to exercise the scheme of elementary education effectively towards every parts of India. Recently the scheme aims at opening new schools in primitive remote places. Not only opening schools they also develop the infrastructure, proper fooding facilities, drinking water, sanitation etc. they are now recently working on to introduce the computer education in the course to increase the quality of education to a very contemporary level.

MID DAY MEAL SCHEME

The concept of mid-day meal originated from a saying of a boy when he said that he will only go to school if he will be provided with food the initiative was taken by the state of Karnataka and later it was stated by the Supreme Court of India that it is a direction to all of the state government to ensure the mid day meals in all types of primary schools in India. Thus it helps to encourage the elementary primary education.

CONCLUSION

HALF HEARTED MEASURES: LACK OF IMPLEMENTATION AND REMEDIES:

After discussing about the measures and actions taken in form of administration, legislation and judicial we can easily interpret that India has really been successful in designing the laws, but that laws are only laws when they are properly implementation. Its like having all the plans without organizing and hard work which thereafter plays an important role in the happening of things. The stark reality is that, if we look India, then we could see that the problem of child labor has no where decreased and still prevalent in the nation affecting the future generation badly. Children are now also found in roadsides, coal mines, industries subjected to exploitation mentally, physically and psychologically. According to one estimate, more than 20 per cent of India’s economy is dependent on children, the equivalent of 55 million youngsters under 14 . Some recent current issues are discussed below

1. Child workers, some as young as 10, have been found working in a textile factory in conditions close to slavery to produce clothes that appear destined for Gap Kids, one of the most successful arms of the high street giant. Speaking to The Observer, the children described long hours of unwaged work, as well as threats and beatings. The discovery of the children working in filthy conditions in the Shahpur Jat area of Delhi has renewed concerns about the outsourcing by large retail chains of their garment production to India, recognized by the United Nations as the world’s capital for child labor .

2. A City-based Child line, a 24-hour helpline for children in distress, rescued 116 children from serious abuse and provided shelter to 46 in 2011. The number of cases of child trafficking, abuse, child labor and beggary increased during 2011 in comparison to 2010, said a report released by the same helpline, which completed 11 years of operation on Monday .

3. In Goa there are around 100 child labors, a prevalence of tourism related sexual abuse and child trafficking. In Goa there is children act 2003 states that the children have to be given free education up to 7 years of age. But up till now there is no such action to do so. There was even a plan of action taken to eradicate child labor in Goa but no survey has been taken already .

4. Another case was there where a boy named ranjith with other 9 children was trafficked to Kerala from west Bengal. They worked in a gold shop at thrissur. They worked constantly for around 16 hectic hours and in that case they were given very low amount of food and money as their reward. They were beaten also in case of any disorder .

5. This is a case about child trafficking. A 17 year girl named as Rani was married to a 40 years old man for rs.10000. After his parents have died, she was got married. One day she went to the police station to complain about her property dispute, she was sexually abused by the police officer. Gradually, she was introduced to many people after when she was trafficked to many places. In this case rani was at the same time sexually abused and trafficked .

6. This is the case of sanu chaudhari when she was brought to India by a co-worker in a carpet industry. Sanu had a friend who tells her about the better payment facilities in raxaul and they settled to go there. But instead of raxaul sanu was actually trafficked in Mumbai, and she was sexually abused by many people, beaten by brothel guards and finally she took up as her profession.

As the above cases described, there are many cases like this which can actually make a clear picture of the fact that after designing so much measures and the measures remain restricted only in paper, not in reality. The judiciary, administrative and the legislation should scan the problem in a broader view, create and amend some existing laws. Here are some points which I think that should be taken into consideration.

 

ECONOMICAL PROBLEM:

First and fore most child labor arises out of mainly one reason that is poverty. We cannot always blame the laws for not having its effect on common people, there are some embedded problems also. For example in primitive villages where the law surely applies but the monthly income is of really negligible amount , then the child of the family below 14 years of age is sent for work to earn the bread for the family or they migrate to another place for any work. Then the children are seen as the financial provider of the family .This includes no offence in that case in case of morality. It is the responsibility of the government to maintain the economical equality between the peoples in India , the biggest problem to be achieved in the current scenario. A family with a very low income rate do not pay any respect towards the laws that prevails but according to them financial assistance is of more importance. Now if that particular family gets the assistance, then they would have hardly sent their children to earn livelihood. So as long there is poverty and destitution in this country, it is really hard to eradicate the evil. In a case the supreme court opined that the problem of the child labor is a very difficult problem and it is a purely economic problem that parents often want their children to be employed to make both ends meet . So onwards there should be some steps by the judiciary or the legislation regarding assisting financially to lessen child labor.

MASS ILLITERACY:

Generally in places where there is mass illiteracy in the community, various social evils are prevalent in that particular section of the society. In the 20th century also, many community think that a girl child is there only for doing household duties and there is nowhere access to education in their families .For these people the constitutional mandates are of no. importance. These categories of people are generally reluctant to send their children to schools and colleges. They send their children for work without knowing anything about the child labor problem and the corrupt employers mostly want these type of workers by whom they can easily make the work done. But this type of continuous practice cannot help in restraining the problem. The government should bear the responsibility to educate the people about the problems, consequences of child labor, about how it hinders the growth of the society, the exploitation of human resource and most importantly that is a punishable offence under law. It should be imparted that education is not only for restriction of child labor but it is also needed to earn money that is the prime factor they look at.

EDUCATIONAL AMMENDMENTS:

It is there that a child has the right to free elementary education between 6-14 years of their age. According to the reports of the Report On National Commission of Labor, the proposed 83rd amendment bill will guarantee the right to education children in time age 6-14 group. Only those who can afford to nurture their young children and provide them pre-school opportunities, will be able to take advantage of the right. The age group of 3+ must be included to ensure that children of disadvantaged groups have equality of opportunity in the school system

Another aspect is there that there are number of schools and plans of actions prepared , but their proper implementation is also important. According to the National University of Educational Planning and Administration (UNEPA), about 47 lakhs elementary school teachers have not studied beyond higher secondary examination. The government should keep training session for that teacher to ensure quality educational to the students. At the elementary level, the student have to be nurtured very properly, have to be equipped with analytical, conceptual skills because this is the base of education that he is receiving . in many cases it happens that for the sake of law , a school is set up. They don’t have proper infra, system and discipline. The teacher remains absent most of the days. In remote areas there is very low accountability rather no accountability in their systems resulting in very poor performance of the teachers. There should be some amendments or some serious measures to curb these problems.

 

BETTER INCOME OPPORTUNITIES

In India unemployment rate is not too high, that it should be ignored. Many of the cases where the peoples are indulging in some unsocial activities, the main reason behind it is the unemployment. In case of child labor as we have discussed above is mainly because of the economical problem that they face. Sometimes due to many realistic reasons and environment prevailing, parents have to send their children for work because he/she is the prime income holder of the family, at this point of time there should be a number of choices. It is therefore the responsibility of the state to provide income alternatives other than health, education, nutrition to the children, because in many families there is the immediate need of money, they cannot just keep their children in schools being the children, the main earner of the society. At this moment alternative income opportunities are needed. The state shall provide incentive along with education. In this case the students receiving incentive can help his family and on the other hand they can also share education both at a time.

ENFORCING THE RESPONSIBILITY ON THE PARENTS

The free elementary education is a constitutional right where it was stated that the state shall provide free education for the children aged between six and fourteen years of age. But this can only be successful in case the parents send them to school instead of sending them at work places. In many cases it happens that, though free education is imparted, still some children do not take part because of not having the consensus of their parents and they go for work under the compulsion of their parents. In this case there should be enforcement on the part of parents in which, the parents will be obliged to send their children to the school otherwise that will be a punishable offence. It will work best for the step mothers/fathers who generally do not send their children to the school and after this the problem will be solved because in this case the parents are in the binding force to send their children to schools . Article 51-A clause k deals with the topic but after the failure of the general persuasion of the clause, it is admitted to move to some stricter provisions. In a case there was opined that children are not mere chattels, they are not the play things of their parents, absolute right of the parents over the destinies and the life of the children has in modern, changed social conditions

 

PROPER ACCOUNTABILITY AND GOVERNANCE

A plan cannot be implemented without proper implementation. All the child labor laws, policies have been determined but not at all implemented properly. This needs proper governance and accountability of the authority. In many cases when it needs the proper investigation about the facts, then the potential to do that really lacks. Sometimes the police inspectors don’t feel themselves responsible for the job given to them. They don’t take the initiative to save the society. There is no one to fill the loop holes prevailing in the system. So the state has to take certain decisions to curtail the problems. The strictness of the law should be increased otherwise the flaws cannot be highlighted and rectified which will result in the ineffective implementation because of violation of laws. One of the effects of this improper governance is the rise of corruption. Illegal employment has been a mode of huge earning in India. The employers generally grab the most portion of amount generated by the child labor. The money generated by child labor is unaccounted and goes to the pockets of the employers. This black money id used again to bribe resourceful peoples all through. But in response only 9 percent of the total employers were arrested. Inspite of their 3 or 4 years of jail, they only got through the case by paying a mere amount for fine. Until now not even a single errant employer has been jailed for . The child labor generates 1,20.000 crores of black money every year.

May be it’s the most pathetic reason why the children have their exposure towards labor. Children whose parents have died and after that it is the immediate necessity of the children to earn something and unfortunately for that reason the child has to join the work. In this case the state should promote the case of adoption. With the help of adoption the child can have again someone who will guide the boy. In eradication of child labor, promotion of adoption is also very important.

According to the report of national commission of labor. A proper fund policy plan should be prevalent. With this facility, the state can use regarding child developments considerations. The best known example comes from Columbia. The government takes 3percent from private and public companies. The fund is then maintained by Columbia institute of child welfare.

On a gross, it can be observed that India has the dubious distinction of having the greatest number of child labor. They are being used by the employers that results in the proliferating amount of miserable and difficult lives for the children. Today the child labor has been nonexistent in the developed countries . But unfortunately in India it is still prevalent because of the poverty forces. The poor income of most of the families in India is the root cause for the problem. There are many voluntary organizations and NGOs who dedicate their duties to eradicate the evil are getting enough support from the government. Very often the open rallies are being arranged by them to infuse the sense of understanding of the problem to the minds of the common peoples. Other than that as discussed earlier there are many actions from the part of state, constitution to fight this problem , then also something is missing very badly and that is proper synchronization between all the measures. If the proper communication and semblance between all the measures can be ensured then the problem will not be as intense as of now. Another major factor that should be kept in mind after the synchronization , is to lower the level of ignorance and increase the mentality of the society. Former can be achieved by proper information allocation in the society and later can be achieved only with the help of the consciousness of the common people. If the community itself do not changes , then it is impossible to implement any ideas and plans because they are main characters dealing with the problem. Therefore the society plays a very important role in this process. We should take the initiative with mass work force and will without passing away the blame on to the others. If we are successful in doing this , then only we can get the solution of the problem.

Right To Education Act 2009: An Overview

Noor Ameena

INTRODUCTION

Right to education of every child is clearly a human right. It enables the child to develop and realize its full potential as a human being. Education plays a major role in the character formation of a child and the subsequent development of personality. It develops in him the ability to think and act according to the circumstances. It also enables a child to develop a set of moral values, and to imbibe the spirit of nationalism. It trains the child to be a good citizen, develops civic sense and cultivates in him the values of participatory democracy.

Education has enumerable benefits. It has immense power to transform a society. The statistical surveys suggest that high literacy rate is corollary to high sex ratio. The lowering of female foeticide, fertility rate and morality rate; increased life expectancy and better health outcomes are the indirect benefits of education.

Basic education includes the key competencies of reading, writing and numeracy. Knowledge should be theoretical as well as practical. Learning process should also include basic life skills too. It is time for us to classify our basic necessities as four: Food, shelter, clothing and education. Education is indispensable to live a dignified life.

The right to education has got considerable recognition in the national as well as international arena. The Indian Constitution itself was amended so as to include right to education as a fundamental right. Moreover, the Parliament has enacted a statute to regulate the implementation of the said right. This is a humble attempt to evaluate the right to education of the children in India as available to them now and the changes that may come across in the near future.

 

RIGHT TO EDUCATION: AS AN INTERNATIONAL OBLIGATION

Article 26 of Universal Declaration of Human Rights, the founding document of international human rights, recognizes the right to education. In 1993, over 170 countries including India reaffirmed their commitment to UDHR at the World Conference in Vienna. Everyone has the right to education and such education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory, technical and professional education shall be generally available and higher education shall be equally accessible to all on the basis of merit. Parents shall have a prior right to choose the kind of education that shall be given to their children.

The International Covenant on Civil and Political Rights (ICCPR), 1966 prohibits discrimination in education under Articles 2 & 24. Article 13 of International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966 also recognizes the right to education. Article 13 of ICESCR envisages right to education to everyone including free and compulsory primary education to all.

The Convention on the Rights of the Child (CRC), 1989 recognizes the right to education. All children shall have the right to free primary education provided (Art.28); a child is any person below the age of 18. It also encourages the states to review the age of majority if set below; and to increase the level of protection for all children under 18. The Convention envisages schools free from practices involving violence, abuse or neglect and with such discipline so as to account for the human dignity of the child. This Convention was ratified by India on 7th December, 2002.

UN Committee on Economic, Social and Cultural Rights has identified four components of the right to education. It includes availability, accessibility, acceptability and adaptability. Functioning educational institutions have to be available in sufficient quantity, including school buildings, trained teachers and teaching materials. There must be equal access for all to education, especially for the most vulnerable groups in society. This includes physical and economic access. Education, including curricula and teaching methods, must be relevant, culturally appropriate and of good quality. Education must also adapt to the needs of students within their diverse social and cultural settings.

 

CONTRIBUTION OF SC TOWARDS RIGHT TO EDUCATION

The Supreme Court in Bandhua Mukti Morcha v. U o I has explicitly stated that the right to live with human dignity enshrines its life breath from Directive Principles of State Policy and therefore it must include educational facilities. In Mohini Jain v. State of Karnataka , the court observed that “‘Right to life’ is the compendious expression for all those rights which the court must enforce because they are basic to the dignified enjoyment of life. The right to life under Article 21 and the dignity of individual cannot be assured unless it is accompanied by the right to education. The State Government is under an obligation to make endeavour to provide educational facility at all levels to its citizens.”

As Gajendragadkar, J. has rightly pointed out in University of Delhi v. Ram Nath , education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development. The word ‘life’ in Article 21 in its wide interpretation is much more than a mere biological existence. Life also includes education, personality and whatever is reasonably required to give expression to life, its fulfillment and its achievements.

The question whether right to primary education as mentioned in Article 45 of the Constitution of India is a fundamental right Article 21 of the Constitution was discussed in detail in Unnikrishnan. J. P v. State of Andhra Pradesh. The court in this case has clearly held that the right to education flows directly from right to life. The fundamental rights in Part III of the Constitution will remain beyond the reach of the illiterate majority unless the ‘right to education’ mentioned in Article 41 is made a reality and the court went on to hold that every citizen has a ‘right to education’ under the Constitution.

Hence the major propositions evolved through this decision are as follows. Right to education, understood in the context of Articles 45 and 41, means:

 Every child/ citizen of this country has a right to free education until he completes the age of fourteen years, and

 After a child/ citizen complete fourteen years, his right to education is circumscribed by the limits of the economic capacity of the State and its development.

This position has been reiterated in a number of judgements after the Unnikrishnan case. Murlidhar Kesekar v. Vishwanath Barde , Ganapathi Nath Middle School v. M.D.Kannan , K.Krishnamacharyulu v. Sri Venkateswara Hindu College of Engineering , State of Himachal Pradesh v. Himachal Pradesh State Recognized and Aided Schools Managing Committee and N.Kunchichekku v. State of Kerala are only few among them.

 

BACKGROUND OF RIGHT TO EDUCATION ACT

Article 45 of the Constitution of India states: “The state shall endeavour to provide free and compulsory education, within a period of ten years from the commencement of this Constitution, for all children until they complete the age of fourteen years.” Article 39 (f) stipulates that the state shall direct its policy towards securing facilities and opportunities for children to develop in a healthy manner and in conditions of freedom and dignity and to protect them from exploitation. Article 41 of the Constitution also directs the State to make effective provisions for securing right to education within the limits of its economic capacity.

The Committee to review the National Policy on Education, Ramamurti Committee in its report titled ‘Towards an Enlightened and Humane Society –NPE, 1986,- A Review’ criticized the government for its continued failure since independence to fulfill the Constitutional directive: “ The time has come to recognize ‘Right to Education’ as one of the fundamental rights of the Indian citizens for which necessary amendments to the constitutions may have to be made and more importantly, conditions be created in society such that this right would become available for all children of India.” This was the first official recommendation towards inclusion of a fundamental right to education.

The Supreme Court in J. P. Unnikrishnan v. State of Andhra Pradesh and others confirmed the fundamental right to education as a right flow from Article 21 read in the light of Articles 45 and 41. In the 1993 judgement of the Supreme Court in J. P. Unnikrishnan v. State of Andhra Pradesh and others, the court had declared, “The passage of 44 years – more than four times the period stipulated in Article 45 has converted the obligation created by the Article into an enforceable right. At least now the state must honour the command of Article 45 and make it a right.”The right to education was accorded the status of fundamental right in the above said decision.

In line of the judgement of SC in Unnikrishnan case, endeavours were made to bring about a Constitutional Amendment which ultimately resulted in inclusion of Art.21 A by the 86th Constitutional Amendment Act. In furtherance of this amendment, The Right to Free and Compulsory Education Act was passed in 2009 after discussions and deliberations which lasted for over 9 years.

 

CONSTITUTION (EIGHTY SIXTH AMENDMENT) ACT 2002

The Constitution (86th Amendment) Act 2002 was a diplomatic measure taken by the Government of India when spate of litigations flowed to the courts of India relying on the Supreme Court judgement in Unnikrishnan case. It is evident from the above cited cases. The insertion of Article 21A through the said amendment recognizing Right to Education as a fundamental right was celebrated all over the world. The Act has indeed taken India to the list of a number of countries where education is recognized as a statutory right.

Article 21A states, “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.” The new Article 21A looks like a restatement of Article 45 of the Constitution with slight alterations in the literal sense, has indeed created a wide gap at the practical level. The Article 45 of the Constitution of India states that the state shall endeavour to provide within a period of ten years from the commencement of the Constitution for all children until they complete the age of fourteen years.

The directive of Article 45 and the rule evolved in Unnikrishnan case got diluted through the Constitution (86th Amendment) Act 2002.

 While Article 45 envisages right to education to all children under 14 years, the Amendment Act restricts it to an age group between 6-14 years.

 The added emphasis in the last clause ‘as the state may, by law determine’ is intended to provide wide unjustifiable discretion to the government.

 The inclusion of clause (k) in Article 51A imposing fundamental duty on parent/guardian thereby shifting the responsibility of state to parents and guardians.

Viewing on these lines, it is felt that the amendments made by the Constitution (86th Amendment) Act are not in consonance with the fundamental right to education as part of right to life under Article 21 declared in Unnikrishnan v. UoI

Constitutionality of Constitution (86th Amendment) Act: A Miscellany

To the extent these provisions are inconsistent with the law so declared by the constitution bench, they are liable to be struck down as violative of article 21 of the Constitution on the analogy of People’s Union of Civil Liberties v. UoI, wherein the Supreme Court held that S. 33-B of Representation of the People Act (1951) which was inserted by the Representation of People (3rd Amendment) Act, 2002 as unconstitutional in as much as S. 33-B tried to nullify the effect of the Supreme Court judgement in Union of India v. Association for Democratic Reforms .

The SC in this case has strongly stated that merely because certain rights are implied as they have been read into Article 21, would not make it less fundamental and are equally enforceable as fundamental rights. It was held that “there cannot be any distinction between the fundamental rights mentioned Chapter III of the Constitution and the declaration of such rights on the basis of judgements rendered by this court.”

The Court in this case clearly stated that Article 13 does not permit the state to make any law which takes away or abridges the rights conferred by Part III (fundamental rights). It further declares that any law made in contravention of this clause to the extent of contravention is void.

The constitutionality of the Constitution (86th Amendment) Act, 2002 was specifically challenged in writ petition No.231 of 2007, Citizens of Equality v. U o I & Ors., one of the writ petitions heard by the Constitution bench in the batch reported as Ashoka Kumar Thakur v. U o I . The Supreme Court in this case held that The Constitution (Ninety-Third Amendment) Act, 2005 does not violate the “basic structure” of the Constitution so far as it relates to the state maintained institutions and aided educational institutions. Question whether the Constitution (Ninety-Third Amendment) Act, 2005 would be constitutionally valid or not so far as “private unaided” educational institutions are concerned, is left open to be decided in an appropriate case.

THE RIGHT OF CHILDREN TO FREE AND COMPULSORY EDUCATION ACT, 2009

The Right of Children to Free and Compulsory Education Act, 2009 is a milestone in the history of law making in India. Despite the recognition of right to education as a fundamental right in J. P. Unnikrishnan v. State of Andhra Pradesh and others which eventually led to the inscription of Article 21A followed by this legislation. The traces of RCFCEA, 2009 can be witnessed in the Post War Pan of Education Development of 1944, also called Sargent Plan. It recommended free and compulsory education for eight years in the six to fourteen age groups.

The Right of Children to Free and Compulsory Education Act, 2009 finally received the assent of the President on 26th August, 2009 to provide for free and compulsory education to all children of the age of six to fourteen years. The Act came into force on 1st April, 2010 as per Section 1 clause (3) of the said Act. The right to education has thus attained the same legal status as the right to life as provided by Article 21A of the Indian Constitution.

The Act provides every child of the age of six to fourteen years a right to free and compulsory education till the completion of elementary education in a neighbourhood school. Special provisions are envisaged for children who were not admitted in any school or who have not completed the elementary education.

OBJECTS OF THE ACT

The Right of Children to Free and Compulsory Education Bill, 2008 which was approved by both the Houses of the Parliament and that which finally received the assent of the President on 26th August 2009 was proposed to be enacted with the following objects.

1. To establish the right of every child to be provided full time elementary education of satisfactory and equitable quality in a formal school which satisfies certain essential norms and standards.

2. To provide Compulsory Education, i.e., to cast an obligation on the appropriate Government to provide and ensure admission, attendance and completion of elementary education.

3. To provide Free Education, i.e., no child, other than a child who has been admitted by his/ her parents to a school which is not supported by the appropriate Government, shall be liable to pay any kind of fee or charges or expenses which may prevent him or her from pursuing and completing education.

4. To provide the duties and responsibilities of the appropriate Governments, local authorities, parents, schools, and teachers in providing free and compulsory education.

5. To provide a system for protection of the right of children and a decentralized grievance redressal mechanism.

AN OVERVIEW OF THE ACT

 Free and compulsory education

Right of Children to free and compulsory admission, attendance and completion of EE. The Act defines ‘free’ as removal of any financial barrier by the state that prevents a child from completing eight years of schooling and ‘compulsion’ as compulsion on the state, rather than targeting parents. Not enrolled/dropout children be admitted to age appropriate class.

  •  Special training to enable such children to be at par with others
  •  Child so admitted entitled to completion of EE even after age 14

The new act softens barriers like birth certificate, transfer certificate, etc. No child shall be psychologically abused by calling him/her ‘failed’ in any class upto class 8, or expelling him/her from school and bars corporal punishment, mental harassment.

 Finance

RTE Act does not specify anything regarding the funding for the implementation of the Act. The amount that was suggested for the successful implementation of the Act was 2, 31, 000 crores. The issue of insufficient funds was raised by the state governments. The Expenditure Finance Committee has now come up with a 68:32 funding formula between Centre and States for the implementation of the said Act. The Centre has now allocated financial assistance to all states so that the cost of the Sarva Shiksha Abhiyan (SSA) could be allocated with the implementation of the RTE.

The amount allotted is still grossly inadequate to comply with the norms prescribed in the Act including a student teacher ratio of 30:1 in primary level, 35:1 in upper primary level and 40:1 for schools with more than 200 students (SSA). The Act also prescribe atleast one classroom for a teacher and separate teachers for Social Science, Languages and Science and Mathematics. This eventually results in increase in the number of classrooms as well as teachers. But the anomaly here is that 33% of the Indian schools are single teacher schools and 50% of the schools are in fact schools only for the namesake.

The mechanism of finance sharing between Centre and States as provided in the Act is as under;

• Central Government shall prepare the estimates of capital and recurring expenditure,

• Central Government shall provide to the State Governments a percentage of the expenditure as GIA of revenues. This percentage shall be determined from time to time in consultation with the States,

• Central Government may make a request to the President to make a reference to the Finance Commission to examine the need for additional resources to be provided to any State Government for carrying out the provisions of the Act.

Role of Parents/ Guardians

Article 51A of the Constitution of India was supplemented with an additional clause (k) by the 83rd Constitutional Amendment Act which makes it a duty of the parent/guardian to provide opportunities for education for all children between the age of six and fourteen years. The RTE Act specifies that the School Management Committees should be constituted of which 75% shall be parents and 50% of the total member shall be women. Adequate representation is sought from weak and disadvantaged groups. This step would result in the increase in transparency as well as accountability.

This indeed was instituted with a good objective, but has in effect put the parents in burden especially poor parents. The SMCs have to perform a variety of functions including the monitoring of fund, performance of teachers etc. and require much time and effort.

 Qualified teachers

Teacher raining can be accurately described as the centre of India’s educational depression. While we intuitively accept that a teacher can indeed ‘make or break’ a child, why then do we invest so little in creating excellent teachers? Asks Aruna Sankaranarayanan, Director, PRAYATNA, Centre for Educational Assessment and Intervention. It is time for us to invest heavily on teacher training and mentoring programmes. Upgradation of teacher education programmes and Elevation of the status of teachers as professionals is the need of the day.

The present status of teachers reminds us of the famous quote of George Bernard Shaw, “Those who can does, those who cannot teaches” given by him under the title ‘Maxim for Revolutionists’ in his renowned play ‘Man and Superman’,1903. When meritorious students of the day go behind professional courses and campus placements to foreign or international companies, the teaching profession is neglected. Only a good teacher with due commitment to the profession can make the teaching-learning process an enjoyable learning experience, for which training programmes play a remarkable role.

. The problem regarding teachers has two phases.

• Number

• Quality

The Act makes it mandatory for schools to have one trained teacher for a maximum of thirty students. The pupil – teacher ratio which is normally set as 30:1 and for schools with students exceeding two hundred, the same shall not exceed 40:1. The Act strictly provides that for the purpose of maintaining such ratio, no teacher posted in one school shall be made to serve in any other school or office or deployed for any non-educational purpose. The appointing authorities of a school owned or established, controlled or substantially financed directly or indirectly by the appropriate Government or by a local authority shall ensure that the vacancy of teachers shall not exceed ten per cent.

The Human Resource Development (HRD) Minister, Mr. Kapil Sibal, is said to have admitted that the shortage of trained teachers is a big challenge. According to him, it has to be a collaborative effort of centre as well as the states

In a research study conducted by Government of Pakistan and UNESCO on the best practices to achieve quality education for all in South Asean Countries, it was found that most of the countries concentrate on improving the learning process through better curriculum and assessment methods and teacher development programmes.

The Right of children to Free and Compulsory Education Act clearly lays down that the qualification for appointment of teachers is to be laid down by the academic authority authorized by Central Government. In order to address the problem of untrained teachers, the Act lays down academic responsibilities of teachers. It is made the duty of the appropriate Government and the local authorities to provide training facilities for the teachers. The Act prohibits private tuition by teachers as well as the deployment of teachers for non-education purpose except for decennial census, disaster relief and elections.

School Recognition

The RTE Act lays down norms and regulations with regard to infrastructure, PTR, the number of working days for teachers, the number of school days and the other facilities. The Act stipulates a time period of three years for private schools for setting right the infrastructural facilities as per the Schedule under the Act. But the conditions of government schools in India except Navodayas and Kendriya Vidyalayas are no better. The provision of the Act penalizing the private institutions for the lack of infrastructure as prescribed in the Schedule is in a way discriminatory since the government schools of the same kind do not attract any penalty.

The Act requires a government action for closure of such private schools which lack the prescribed facilities, infrastructural and otherwise within a period of three years. The viable option would have been to raise the quality of such schools with adequate mechanisms of state funding. The problem of insufficiency of schools cannot be meted out by closure of schools. On the other hand, the bringing up of new schools in addition to the raising of standards of existing schools would save the situation to a greater extent.

Reservation in private schools

The provision of the Act making it mandatory for private schools, aided as well as unaided, to provide 25 % reservation of their seats for economically weaker and socially disadvantaged sections appears to be a welcome step from the surface. Those students will learn in the private institutions without paying the tuition fees. The private schools will be reimbursed by the government on the basis of per-child expenditure. The government will pay the tuition fee of the student or per-child expenditure in government schools whichever is less.

The implementation of this provision has a number of procedural hurdles.

• The selection procedure of students is to be laid down.

• The clause ‘weaker and disadvantaged section’ needs clarity in definition.

• The monitoring process of government is to be laid down.

• The admission criteria are to be as a whole or separate for each neighbourhood schools is to be addressed.

• It is to be laid down that in case of a private school as well as a government school, which should be considered as the neigbourhood school

Implementation of the said provision shall be done without overburdening the private management as the 75% students in the unreserved category. Any kind of financial crisis in the private management would end up in charging of heavy fees on the children of unreserved category.

 Curriculum

The curriculum and the evaluation procedure for elementary education shall be laid down by the academic authority to be specified by the appropriate Government.

Curriculum by prescribed academic authority should:

• Conform to constitutional values.

• Make child free from fear, trauma and anxiety.

• Be child centred, child friendly; provide for learning through activities.

• Medium of instruction – child mother tongue to the extent possible.

• Provide for comprehensive and continuous evaluation.

Act makes it mandatory hat no child shall be required to pass any Board examination till the completion of elementary education. Examinations are known to produce mental trauma. Fear of failure, particularly at a tender age, leads to loss of self esteem. The policy of no Board exams does not mean that there is no strategy to evaluate the student performance. A system of continuous and comprehensive evaluation is laid down which will enable individual attention to each and every student by the concerned teachers. The records so made shall be used by the teachers as a guide in helping each child reach desired levels of educational achievement.

Grievance Redressal Mechanism

The RTE ACT assigns NCPCR/SCPCR additional functions. It includes the following.

• Examine and review safeguards for rights under this Act, recommend measures for effective implementation.

• Inquire into complaints relating to child’s right to free and compulsory education .

• .NCPCR/SCPCR has powers assigned under Section 14 and 24 of the Commissions for Protection of Child Rights Act.

Where SCPCR not constituted, appropriate Government may constitute an Authority.

The parties shall also seek redressal of grievances by making a written n complaint to the local authority having jurisdiction. The local authority shall decide the matter within a period of three months after giving opportunities to be heard for both the parties. The right to appeal shall also be used by a person aggrieved by the decision of the local authorities. The appeal will be heard by the State Commission for Protection of Child Rights or any other authority prescribed by the Act.

The Act also stipulates formulation of National as well as State Advisory Councils, consisting of such number of members not exceeding fifteen, to be appointed amongst persons having knowledge and practical experience in the field of elementary education and child development. The function of the Advisory Councils shall be to advise the Centre and State respectively for the effective implementation of the provisions of the act.

 

Compulsory Attendence

The emphasis on compulsory attendance is an indirect way of curbing child labour. The best way to prevent child labour would be to ensure the presence of children in some other places, say, educational institutions. There are provisions in RTE Act which makes it obligatory for the appropriate Government and the local authorities to ensure and monitor admission, attendance and completion of elementary education by every child.

 

Removal of class or caste consciousness

The RTE Act makes it a duty of the appropriate Government and the local authorities to ensure that the child belonging to weaker section and child belonging to the disadvantaged group are not discriminated against and prevented from pursuing education on any grounds. This is an answer to the dilemma put out by the University Education Commission (1948-49) which had Dr. Radhakrishnan as its chairperson.

“In a democratic society, opportunity for learning must be open not only to the elite, but to all those who have to carry the privilege and responsibility of citizenship. Education is a universal right, not a class privilege. The educational attainments of our people are far below what is necessary for effective individual living or for the satisfactory maintenance of the society. For the great majority of our boys and girls, the kind and amount of education they may hope to get depends not own their own abilities, but on the economic status of their family or the accident of their birth.”

 

COMMON SCHOOL SYSTEM

The idea of a Common School System is as old as Kothari Commission. Kothari Commission or Indian Education Commission, 1964-66 emphasized on the expansion of educational institutions broadly with an accent on equalization of educational opportunities. The committee had recommended education to people of all straits of society and envisaged a Common School System of public education. A recent trend of double standard of education is alarming. The students from government schools are in no way at par with the students from private educational institutions and international schools. The government schools in India remain as an instrument of job security for teachers and peons rather than an accessory to quality education. The campaigning of government teachers at the time of admission as well as inspection irrespective of the lack of infrastructure and other amenities clearly depicts the existing scenario.

Acharya Ramamurti Committee which was instituted to review the National Policy of Education has clearly laid down the need to end the disparities between schools by upgrading the quality of ordinary schools and providing amenities for minimum levels of learning towards attaining the goal of Common School System. The suggested determined action of both Centre and States in this regard.

The Common School System was enshrined and passed by m the Parliament in every National Policy on Education since Independence viz. 1968, 1986, 1992

SUGGESTIONS FOR IMPROVEMENT

1. Performance based pay scales shall be considered as a way to improve teaching.

2. Assist private unrecognized schools to improve their facilities including infrastructure so as to comply with the norms and standards prescribed by the Act, thereby avoiding closure, within three years.

3. Bring about more clarity in the implementation of 25% reservation in private schools.`

4. Conduct awareness campaigns so as to raise the awareness about the RTE Act among the common mass thereby increasing the grassroot pressure. Schools need to be made aware of provisions of the 25% reservations, the role of SMCs and the requirements under the Schedule. This can be undertaken through mass awareness programs and enlightened moves of the local authorities.

5. Restructure the current licensing and regulatory policy in the government sector. Let the policies be structured in such a way as to encourage the well-intentioned `edupreneurs’ from opening more schools. Starting a school in Delhi, for instance, is a mind-numbing, expensive and time-consuming task which requires clearances from four different departments totaling more than 30 licenses. The need for deregulation is obvious.

 

CONCLUSION

As Alexander Pope has rightly said, “Legislation is only the first step; the real step is execution.” Kapil Sibal, the Union Human Resource Development Minister said to journalists on the historic event of bringing RTE Act into effect. “ For the first time, education will become a constitutional right. It is a tryst with destiny in the area of education.” He alleged it was the accountability of all the stakeholders to effectively implement it. He further added “But to think that we have passed a law and all children will get educated is not right. What we have done is preparing a framework to get quality education. It is for the entire community to contribute and participate in this national endeavor.”

Child labour in india: A human rights perspective

child labourAastha Suman

I. INTRODUCTION

Child labour is undoubtedly a human rights issue. It is not only exploitative but also endangers children’s physical, cognitive, emotional, social, and moral development. It perpetuates poverty because a child labour, deprived of education or healthy physical development, is likely to become an adult with low earning prospects. This is a vicious cycle which apart from ruining the lives of many results in an overall backwardness in the masses.

Moreover, conceptualising child labour as a human rights issue gives the victim with the authority to hold violators liable. Human rights generate legal grounds for political activity and expression, because they entail greater moral force than ordinary legal obligations. Children are right holders with the potential to make valuable contributions to their own present and future well being as well as to the social and economic development of the society and thus they should under no circumstances be perceived as passive and vulnerable.

Today, traditionally prescribed interventions against child labour which were welfare based like providing a minimum age for work are being replaced by rights-based approach. A rights-based approach to child labour needs to be adopted which puts internationally recognized rights of children to the center while utilizing UDHR, ICCPR and ICESCR as a supportive framework. Child labour is a condition from which the children have a right to be free and it is not merely an option for which regulating standards must be devised.

In this paper we shall firstly trace the slow orientation of child labour laws to include human rights perspective internationally, and then evaluate current Indian laws and policies from a human rights perspective

II. A HUMAN RIGHTS APPROACH TO CHILD LABOUR

Initially, scholars were unsure over extending human rights to children. For instance, the 1948 Universal declaration of Human Rights (UDHR) emphasises that “everyone is entitled to all rights and freedoms set forth in the declaration…” but makes no age qualification to the same. So it is unclear whether it extends to children. However, Art.4 of UDHR has been interpreted as prohibiting exploitation of child labour by interpreting “servitude” to include child labour.

In addition, Articles 23 and 26 of the United Nations Universal Declaration of Human Rights seek to guarantee ”just and favorable conditions of work” and the ”right to education,” both of which are violated constantly and globally through the exercise of the worst forms of child labor.

In 1966 the International Covenant on economic, social and cultural rights (ICESCR) and International Covenant on civil and political rights (ICCPR) took significant preliminary steps towards modifying human rights according to age, by defining childhood as a state requiring special protection, with rights distinct to those of adults. Even so it was not until 1989 that the Convention on Rights of Children (CRC) clearly spelt out the rights of the child while giving them a special status apart from the adults.

Thus, it should not be surprising that early international legal efforts to address child labour tended to be abolitionist in tone and treated as an aspect of labour market regulation. Next, a prioritization approach was adopted where concentration was on the more abusive forms of child labour. So the ILO adopted Convention 182 on the Worst Forms of Child Labor, 1999, aimed at the immediate elimination of intolerable forms of child labor. The convention requires signatories to work with business groups to identify hazardous forms of child labor and introduce time-bound programs for eliminating them.

Conventions 138 and 182 are recognised as core International Labour Organization (ILO) conventions but unfortunately human rights groups have done much to criticise it. They argue that this artificial division of hazardous and non-hazardous forms of child labour is artificial and made only for the benefit of labour regulations. Child labour in any form is very harmful and exploitative for the children.

Secondly, child labour, as defined by ILO is work done by children under the age of 12; work by children under the age of 15 that prevents school attendance; and work by children under the age of 18 that is hazardous to their physical or mental health. It is an economic activity or work that interferes with the completion of a child’s education or that is harmful to children in any way. Such an age based classification is incongruous and is behind time. The right to a childhood cannot be replaced by placing such age barriers which imply at least some work could be done by children at even age 12! Where is the best interest of child seen in such laws?

Fortunately, a human rights approach to child labour was soon adopted by Convention on Rights of the Child (CRC) in 1989. Such rules focus not only on the avoidance of harm to children but as well, on regulation of employment relationship in which working children find themselves and beyond that, on rights of children to education and to participate in decisions that affect their lives, including those related to their employment. This holistic view of child labour as only a part of a child’s life is principally what sets human rights approach apart from the labour regulation approach. However, some critique of CRC feel that categorizing child labour as a special category has trivialized their rights and have made them weak and in need of an adult advocate. Conversely, the defenders of CRC argue that it is through this classification that children gain more rights with legally recognized interests which are specific to their stage in life cycle.

The slavery convention, 1926 and Supplementary convention on abolition of slavery, the slave trade, institutions and practices similar to slave trade, 1956 entered into force in 1957 prohibits slavery like practice under Art 1. In recent times Child labour has been read as a slave like practice as it involves economic exploitation. Since children are more vulnerable than adults and are dependent on their parents, it can be assumed that when they are economically exploited by their parents or by their consent, the decree of dependency necessary for work to b qualified as slavery like practice will be attained in most cases.

In the light of ICCPR (art 8(2)) and Supplementary convention on abolition of slavery, the slave trade, institutions and practices similar to slave trade, 1956, Art.4 of UDHR should be interpreted as prohibiting exploitation of child labour as child labour comes under “servitude”. Child labour also comes under the term “forced or compulsory labour” in Art.8(3) of ICCPR. The obligations of state parties under art 8 are immediate and absolute. Thus state parties have to prevent private parties from violating child labour norms. Art 24, ICCPR obliges the state to protect children from economic exploitation.

III. CONVENTION ON RIGHTS OF CHILD

United Nations Convention on the Rights of the Child is the first legally binding international instrument to incorporate a full range of human rights such as civil, cultural, economic, political and social rights for children. The Convention offers a vision of the child as an individual and as a member of a family and community, with rights and responsibilities appropriate to his or her age and stage of development. By recognizing children’s rights in this way, the Convention firmly sets the focus on the whole child.

The Convention under Art.32 speaks of economic exploitation of children by making them perform work that is likely to be hazardous or to interfere with the child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development. The Convention spells out a child’s right to education , as well as identifying the forms of harm to which children should not be exposed. Other rights given to children include right “to the enjoyment of the highest attainable standard of health” and to abolish traditional practices that are prejudicial to children’s health (Article 24), a right “to a standard of living adequate for the child’s physical, mental, spiritual, moral and social development”; parents have the main responsibility for this, but governments are required “within their means” to assist parents, as well as to provide material assistance and support in case of need(Article 27) and a right “to rest and leisure, to engage in play and recreational activities appropriate to the age of the child”. Article 22 specifies that refugee children have the same rights as all other children.

Article 6 of the convention makes it the obligation of the governments to ensure that children are able to survive and develop “to the maximum extent possible” while Article 11 urges governments to prevent “the illicit transfer and non-return of children abroad”. Under Article 19, Governments must take action to protect children against all forms of physical or mental violence, injury, abuse, neglect, maltreatment or exploitation, including sexual abuse and must provide special protection and assistance to children who are deprived of their own family environment under article 20. Article 35, requires governments to take action to prevent children from being trafficked while articles Article 36 and 39 requires governments to protect children “against all other forms of exploitation prejudicial to any aspects of the child’s welfare” and to help children recover from exploitation, neglect or abuse (particularly their physical and psychological recovery and return and reintegration into the communities they come from).

Two other provisions in the Convention are also vitally important for working children. Article 3 says government agencies and other institutions taking action concerning a child or children must base their decisions on what is in the children’s “best interests”. Article 12 emphasises that when a child is capable of forming his or her views, these should be given due attention, in accordance with the child’s age and maturity.

Other conventions of interest include Optional protocol to the convention on rights of child on sale of children, child prostitution and child pornography and Optional protocol to the convention on rights of child on the involvement of children in armed conflict both adopted in May, 2000.

IV. INDIA AND ITS INTERNATIONAL COMMITMENTS

India has ratified six ILO conventions relating to child labour but have not ratified the core ILO conventions on minimum age for employment (convention 138) and the worst forms of child labour, (convention 182) recognised as the core conventions at the international labour conference which makes it mandatory for the international community to follow certain standards in their crusade against child labour. Nevertheless, India has taken commendable steps to eliminate child labour.

The recent right of children to free and compulsory education Act, 2009 and the preceding 86th amendment exemplifies the same. Furthermore, the passing of Juvenile Justice (care and protection) Act, 2006 shows India’s commitment to a human rights approach to child labour. The Act emphasises on looking into the best interests of the child and allows for social reintegration of child victims.

In such a scenario India not signing the core labour conventions does not make a difference in the fight against child labour. India is a party to the UN declaration on the Rights of the Child 1959. India is also a signatory to the World Declaration on the Survival, Protection and Development of Children. More, importantly India ratified the Convention on the Rights of the Child on 12 November 1992.

Other important international initiatives against child labour include the adoption of the first Forced Labor Convention (ILO, No. 29), 1930, Stockholm Declaration and Agenda for Action: States that a crime against a child in one place is a crime anywhere, 1996, establishment of 12 June as the World Day Against Child Labor in 2002 by ILO and the first global economic study on the costs and benefits of elimination of child labour.

V. INDIAN LAWS ON CHILD LABOUR

The present regime of laws in India relating to child labour are consistent with the International labour conference resolution of 1979 which calls for combination of prohibitory measures and measures for humanising child labour wherever it cannot be immediately outrun.

In 1986 Child labour (Prohibition and regulation) Act was passed, which defines a child as a person who has not completed 14 years of age. The act also states that no child shall be employed or permitted to work in any of the occupations set forth in Part A or in the process set forth in Part B, except in the process of family based work or recognised school based activities. Through a notification dated 27 January 1999, the schedule has been substantially enlarged to add 6 more occupations and 33 processes to schedule, bringing the total to 13 occupations and 51 processes respectively. The government has amended the civil service (conduct) rules to prohibit employment of a child below 14 years by a government employee. Similar changes in state service rules have also been made.

The framers of the Indian Constitution consciously incorporated relevant provisions in the constitution to secure compulsory primary education as well as labour protection for children. If the provisions of child labour in international conventions such as ILO standards and CRC are compared with Indian standards, it can be said that Indian constitution articulates high standards in some respects The constitution of India, under articles 23,24, 39 ( c) and (f), 45 and 21A guarantees a child free education, and prohibits trafficking and employment of children in factories etc. The articles also protect children against exploitation and abuse. Equality provisions in the constitution authorises affirmative action policies on behalf of the child.

The National child labour policy (1987) set up national child labour projects in areas with high concentration of child labour in hazardous industries or occupations, to ensure that children are rescued from work and sent to bridge schools which facilitate mainstreaming. It is now recognised that every child out of school is a potential child labour and most programs working against child labour tries to ensure that every child gets an education and that children do not work in situations where they are exploited and deprived of a future. Similarly, there are other programmes like National authority for elimination of child labour, 1994 (NAECL) and National resource centre on child labour, 1993 (NRCCL). Recently, government of India notified domestic child labour, and child labour in dhabas, hotels, eateries, spas and places of entertainment as hazardous under the child labour (prohibition and regulation) Act, 1986, effective from 10-10-2006.

National human rights commission has played an important role in taking up cases of worst forms of child labour like bonded labour. In 1991 in a silk weaving village of Karnataka called Magdi it held an open hearing which greatly sensitised the industry and civil societies. It also gave rise to new NCLP programmes.

VI. JUDICIAL REFLECTIONS

Judiciary in India has taken a proactive stand in eradicating child labour. In the case of M.C. Mehta v. State of Tamil Nadu and Ors , this Court considered the causes for failure to implement the constitutional mandate vis-à-vis child labour. It was held that the State Government should see that adult member of family of child labour gets a job. The labour inspector shall have to see that working hours of child are not more than four to six hours a day and it receives education at least for two hours each day. The entire cost of education was to be borne by employer.

The same was reiterated in BandhuaMuktiMorchav.UOI and directions were given to the Government to convene meeting of concerned ministers of State for purpose of formulating policies for elimination of employment of children below 14 years and for providing necessary education, nutrition and medical facilities.

It was observed in both the case that it is through education that the vicious cycle of poverty and child labour can be broken. Further, well-planned, poverty-focussed alleviation, development and imposition of trade actions in employment of the children must be undertaken. Total banishment of employment may drive the children and mass them up into destitution and other mischievous environment, making them vagrant, hard criminals and prone to social risks etc. Immediate ban of child labour would be both unrealistic and counter-productive. Ban of employment of children must begin from most hazardous and intolerable activities like slavery, bonded labour, trafficking, prostitution, pornography and dangerous forms of labour and the like.

Also, in case of PUCL v. UOI and Ors children below 15 years forced to work as bonded labour was held to be violative of Article 21 and hence the children were to be compensated. The court further observed that such a claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection of such rights.

However, Human rights experts criticise the scheme of payment of compensation envisage in Child labour act and further adopted by the Judiciary with gusto. They say that monetary compensation is like washing away ones conscious which still believes that if a child labour is sent to school he must be compensated for the amount which he might have got if he had worked instead. This only confuses the already divided opinion of the society today which still thinks that poor and needy children are better off working.

VII. CONCLUSIONS

India has done well in enacting suitable legislations and policies to combat child labour. Nonetheless, its implementation at grass root level is very much lacking. The child labour laws today are like a scarecrow which does not eliminate child labour but only shifts it geographically to other places, to other occupations like agriculture which may be less paying or it might be still continued clandestinely. The lack of a specialised enforcement officer leads to lesser attention being given to child labour legislations. Furthermore, many of the child labourprogrammes remain poorly funded.

Child labour is a complex problem which cannot be eliminated without first attacking it at the roots. Thus, poverty, unemployment, lack of social security schemes, illiteracy and the attitude of society need to be tackled first before any progress can be made. A starting point can be to treat Child labour as a human rights problem and discouraging its manifestation in any form. If the society as such sees child labour as a social malaise, we will be much closer at achieving success.

Lastly, there is a lot of debate over the age from which child labour should be banned. The ILO conventions do not give a definite age, 14 years seems to be the general understanding but CRC defines a child to be below 18 years. Right to education is for children below 14 years and Child labour is prohibited till age of 14 years. This brings the question as to whether children of age 14-18 years are to be denied basic human rights and are to be left vulnerable.

 

 

Role of Indian judiciary in protection of Rights of the Children

Sandip Bhosale

1 Introductory

The role of the India Judiciary and the scope of judicial interpretation have expanded remarkably in recent times, partly because of the tremendous growth of statutory intervention in the present era. The judiciary plays an important role in the protection of fundamental rights of the citizen and non-citizens alike. The twin safeguards of equality before law and equal protection of laws are acknowledge as two of the most important pillars of human rights of the universe of freedom that is where ever freedom to assert human rights is recognized, whether under an unwritten or a written constitution. India is the largest democracy in the world, a sovereign, socialist, secular democratic and republic with a comprehensive charter of rights written into its constitution. The Indian Constitution lays down base on which its foreign policy should be constructed and its international obligations respected. These base are articulated principally in Article 51, which occurs in Part IV of the Indian Constitution.

The true nature and scope of the function of the court has since long been a matter of debate almost in all the countries regulated by written Constitution. Austinian Jurisprudence gives a very narrow view of the judicial function. Austin defined law as a command of the political sovereign and his sovereignty was indivisible and absolute, only the legislature could make law. The function of the court was merely to declare the pre-existing law or to interpret the statutory law. But on the other hand, the realist movement in the United State the latest branch of sociological Jurisprudence which concentrates on decisions of law courts. Regards and contend that law is what court says. For them, judges are the law makers. The entire common law is the creation of the English courts but is posited on the myth that judge merely found law. Even with such self-negating perception of their own role, the English judges not only made law but also changed it to suit entirely new conditions created by the industrial revolution.In this modern era Judicial Activism emerged as tool for protecting Rights of the Children including protection from sexual exploitation, child trafficking, child abuse etc. some case dealt by the Indian judiciary for the protection of child rights are as follows

2 Child Labour and Right to Education

Education is critical for economic and social development. It is crucial for building human capabilities and for opening opportunities. The importance of education was fully recognised by classical economist and social scientist such as Adam Smith, John Stuart Mill, Schultz, Becker and Amartya sen. Alfered Marshall in the Principles of Economics observed as follows:

“The wisdom of expending public and private funds on education in not to be measured by its direct fruits alone. It will be profitable as a mere investment, to give the masses of the people much greater opportunities, than they can generally avail themselves of. For by this means many, who would have died unknown, are able to get the start needed for bringing out their latent abilities. The most valuable of all capital is invested in human beings.”

The abolition of child labour must be preceded by the introduction of compulsory education since compulsory education and child labour laws are interlinked. Article 24 of the Constitution bars employment of child below the age of 14 years. Article 45 is supplementary to Article 24 for if the child is not to be employed below the age of 14 years he must be kept occupied in some educational institution. The Court in series of cases has unequivocally declared that right to receive education by the child workers is an integral part of right of personal liberty embodied in Article 21 of the Constitution. In M.C. Mehta v. State of Tamil Nadu The Supreme Court directed that children should not be employed in hazardous jobs in factories for manufacture of match boxes and fireworks, and positive steps should be taken for the welfare of such children as well as for improving the quality of their life.

In Goodricke Group Ltd v Center of West Bengal the Court held that it would be for the Centre and State/Union Territories to raise necessary resources to achieve the goal of providing free education. Recently Article 21-A has been inserted in the India Act, 2002 which provides that the state shall provide free and compulsory education to all children of the age of six to furteen years in such manner as the state may, by law, determine. In Unni Krishnan J.P. v State of Andhra Pradesh Justice Mohan observed “in educational institutions which are seed-beds of culture, where children in whose hands quiver the destinies of the future, are trained. From their ranks will come out when they grow up statesmen and soldiers, patriots and philosophers, who will determine the progress of the land.

3 Child Labour Welfare and the Locus Standi

The liberalization of the concept of locus standi, to make access to the court easy, is an example of the changing attitude of the Indian Courts. It is generally seen that the working children by and large come from the families, which are below the poverty line, and there are no means to ventilate their grievance that their fundamental rights are being breached with impunity. Keeping in view the pitiable conditions of the child workers, the apex court has shown its sensitivity towards the poor people by relaxing the concept of locus standi.

One important case in which Supreme Court entertained a letter, sent by post as public interest litigation was the Peoples Union for Democratic Rights v. Union of India Also known as the Asiad Workers case. The Supreme Court held that though the Employment of Children Act, 1938 did not include the construction work on projects because the construction industry was not a process specified in the Schedule to the Act, yet, such construction was a hazardous occupation and under Art.24 children under 14 could not be employed in a hazardous occupation. The right of a child against exploitation under Art.24 was enforceable even in the absence of implementing legislation, and in a public interest proceeding

They have no faith in the existing social and economic system”. A high water mark in the application of the Article 24 of the Constitution was reached in the decision of the Court in Salal Hydro Project v. Jammu and Kashmir wherein the Court reiterated the above stand. The Court maintained that child labour is an economic problem. Poor parents seek to argument their meager income through employment of their children. So, a total prohibition of child labour in any form may not be socially feasible in the prevailing socio-economic environment. Article 24 therefore, puts only a practical restriction on child labour. The Court further observed that so long as there is poverty and destitution in this country, it will be difficult to eradicate child labour.

4 Juvenile Justice

The Juvenile Justice (Care and Protection) Act, 2000 is enacted as human rights legislation and it is now in force in all State uniformly, repealing the entire Children’s Act enacted by states individually. This legislation deals with the two types of juveniles. “Juvenile in conflict with law” as defined under Section 2(1) and child in need of care and protection as defined under Section 2 (d). A juvenile or a child as defined under Section 2 (k) is a person who has not attained the age of 18 years. The penitentiary system shall comprise treatment of prisoners, the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.

In Sheela Barse v. Union of India Ms.Sheela Barse, a dedicated social worker took up the case of helpless children below age of 16 illegally detained in jails. She petitioned for the release of such young children from jails, production of information as to the existence of juvenile courts, homes and schools and for a direction that the District judges should visit jails or sub-jails within their jurisdiction to ensure children are properly looked after when in custody. The Court observed that children in jail are entitled to special treatment. Children are national assets and they should be treated with special care. The Court urged the setting up of remand and juvenile homes for children in jails. In Sheela Barse v Secretary Children Aid Society the Supreme Court came forward to protect the rights of the children in the observation homes.

5 Adoption of Children

Adoption concerns two of our basic human concerns identity and family. A child’s rights to an identity and family are now universally recognized. They are enshrined in the United Nation Convention on the Rights of the Child, 1989.

The Activist Supreme Court of India in Lakshmikant Pandey v Union of India. This writ petition has been initiated on the basis of a letter addressed by one Laxmi Kant Pandey, an advocate practising in this Court, complaining of mal-practices indulged in by social organisations and voluntary agencies engaged in the work of offering Indian children in adoption to foreign parents. The letter referred to a press report based on “empirical investigation carried out by the staff of a reputed foreign magazine” called “The Mail” and alleged that not only Indian children of tender age are under the guise of adoption “exposed to the long horrendous journey to distant foreign countries at great risk to their lives but in cases where they survive and where these children are not placed in the Shelter and Relief Homes, they in course of time become beggars or prostitutes for want of proper care from their alleged foreign foster parents.” The petitioner accordingly sought relief restraining Indian based private agencies “from carrying out further activity of routing children for adoption abroad” and directing the Government of India, the Indian Council of Child Welfare and the Indian Council of Social Welfare to carry out their obligations in the matter of adoption of Indian children by foreign parents. This letter was treated as a writ petition and by an Order dated 1st September, 1982 the Court issued notice to the Union of India the Indian Council of Child Welfare and the Indian Council of Social Welfare to appear in answer to the writ petition and assist the Court in laying down principles and norms which should be followed in determining whether a child should be allowed to be adopted by foreign parents and if so, the procedure to be followed for that purpose, with the object of ensuring the welfare of the child. In this case the Supreme Court held that any adoption in violation of or non-compliance with may lead adoption to be declared invalid and expose person concerned with to strict action including prosecution. For years, social activists have used these directions to protect children and promote desirable adoptions. The Government of India framed a national policy in this regard.

6 Sexual Exploitation of Children

Human Rights are derived from the dignity and worth inherent in the human person. Human right and fundamental freedom have been retreated by the Universal Declaration of Human Rights. The human rights for women, including girl child age, therefore, inalienable, integral and indivisible part of universal human rights. All forms of discrimination on ground of gender are violative of fundamental freedoms and human rights. It would, therefore, be imperative to take all steps to prohibit prostitution. Eradication of prostitution in any form is integral to social weal and glory of womanhoods. Right of the child to development hinges upon elimination of prostitution. Success lies upon effective measures to eradicate root and branch of prostitution. In Bachpan Bachao Andolan v Union of India writ petition filed by HRLN, Suprem Court on 18.04.2011 has ordered for implementation of suggestions put forth during the hearing of this case, which will introduce significant reforms in existing child protection regime. The petition was originally brought in 2006 on issue of abuse and exploitation of children in circus industry. Court has ordered Central Government to bring a notification prohibiting employment of children in circus, to conduct raids to rescue children already working in circuses and frame proper scheme for their restoration. During the hearing in this case, several recommendations were put forth by petitioner and respondent, aimed on reforming existing legal and procedural mechanism on child protection. This recent order is just one among the several orders which may be given by Hon’ble Supreme Court in due couese of time as Hon’ble Court has made clear its intention to deal with issue of childrens exploitation in a long term and systematic manner. Assuring to deal with childrens exploitation firmly, Supreme Court has observed: “We plan to deal with the problem of childrens exploitation systematically”.

In Vishal Jeet v. Union of India Supreme Court in this case deals with some seminal questions relating to the sexual exploitation of children. Here it has been observed that it is highly deplorable and heart rending to note that many poverty stricken children and girls in the prime age of youth are taken to the ‘flesh market’ and forcibly pushed into “flesh trade” which is being carried on in utter violation of all cannons of morality, decency and dignity of mankind. In Gaurav Jain v. Union of India, The Supreme Court held that the children of the prostitutes have the right to equality of opportunity, dignity, care, protection and rehabilitation so as to be part of the mainstream of social life without any pre-stigma attached on them. The Court directed for the constitution of a committee to formulate a scheme for the rehabilitation of such children and child prostitutes and for its implementation and submission of periodical report of its Registry. 7. Sakshi v Union of India In this Public Interest Litigation matter, the Supreme Court of India asked the Law Commission to consider certain important issues regarding sexual abuse of children submitted by the petitioner and the feasibility of amendment to 375 and 376 IPC.

7 Rehabilitation of Child Prostitutes

The rescue and rehabilitation of the child prostitutes and children should be kept under the Nodal Department, namely; Department of Women and Child Development under the Ministry of Welfare and Human Resource, Government of India. It would devise suitable schemes for proper and effective implementation. The institutional care, thus, would function as an effective rehabilitation scheme in respect of the fallen women or the children of fallen women even if they have crossed the age prescribed under the Juvenile Justice (Care and Protection) Act. They should not be left to themselves, but should be rehabilitated through self-employment scheme or such measures as are indicated by the Supreme Court in this case. The juvenile homes should be used only of a short stay or relieve the child prostitutes and neglected juveniles from the trauma they would have suffered. They need to be rehabilitated in the appropriate manner. The details are required

To be worked out by meaningful procedure and programmes. In the light of the directions already given by this court from time to time to the central government state governments and Union Territory Administrators, adequate steps should be taken to rescue the prostitutes, child prostitutes and the neglected juveniles. They should take measures to provide them adequate safety, protection and rehabilitation in the juvenile homes manned by qualified trained social workers or homes run by NGOs with the aid and financial assistance given by Government of India or state government concerned. A nodal committee with the public spirited NGOs, in particular women organizations women members should be involved in the management. Adequate encouragement may be given to them. The needed funds should be provided and timely payments disbursed so that the scheme would be implemented effectively and fruitfully.

8 Conclusion

The brief survey of the above mentioned cases shows that the activism of the Indian Supreme Court to protect the children from various type of exploitation. Although the Supreme Court made laudable directions and suggestions in many instances to protect basic rights of poor children, unfortunately these directions and suggestions are not followed and implemented by the government machinery effectively. In this regards, the performance of the Indian Judiciary stands out as a signal contribution to the implementation of human rights generally and that of Child Rights in particular.

As such in the M.C. Mehta v. State of Tamil Nadu and Goodricke Group Ltd v Center of West Bengal Supreme Court of India emphasized on national Constitution and international instruments, including the Convention on the Rights of the Child, the Indian government is required to ensure that children do not engage in hazardous work. In Lakshmi Kant Pandey v Union of India with object of ensuring the welfare of the child J. Bhagwati directed the Government and various agencies to follow some principles as their constitutional obligation to ensure the welfare of the child. Also judiciary has taken the lead to save the child from exploitation and improve their conditions. To mention a few, the Asiad case (1981), L.K.Pandey case (1994), M.C.Mehtas case (1991), Vishal Jeet v. Union of India (1990), and Gaurav Jain v. Union of India (1997) are some of the famous decisions where the judiciary has shown enough courage to uphold the interests of the children and spared no one to improve the working conditions of the child workers. The judiciary has always made concrete efforts to safeguard them against the exploitative tendencies of their employer by regularizing their working hours, fixing their wages, laying down rules about their health and medical facilities. The judiciary has even directed the states that it is their duty to create an environment where the child workers can have opportunities to grow and develop in a healthy manner with full dignity in consensus of the mandate of our constitution.

REFERENCES

  •  Part III of the Constitution. For details see Durga das Basu, Shoter Constitution of India,Prentice-Hall of India Pvt. Ltd., New Delhi, 1996, p. 22-23.
  •  Article 14 of the Indian Constitution: The State shall not deny to any person equality before law or the equal protection of the laws within the territory of India.
  •  Word secular is inserted by the Constitution (42nd Amendment) Act, 1976 (w.e.f. 03.01.1977).
  •  Article 51: The Stae shall endeavour to (a) promote international peace and security; (b) maintain just and honourable relations between nations; (c) foster respect for international law and treaty obligations in the dealing of organise peoples with one another; and (d) encourage settlement of international disputes by arbitration.
  •  Article 24: 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.
  •  Article 45 of the Indian Constitution: State shall endeavour to provide, within period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of 14 years.
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Compulsory education gives poor right to dignity: Court

The Supreme Court said Thursday provision of free and compulsory education to the disadvantaged sections of society was to afford them a right to live with dignity.

An apex court bench of Chief Justice S.H. Kapadia, Justice K.S. Panicker Radhakrishnan and Justice Swatanter Kumar made the observation in the course of the hearing of a petition by the Society for Un-aided Private Schools of Rajasthan challenging the provision of the Right to Education Act mandating the private schools to reserve 25 percent of their seats for the students coming from socially disadvantaged section of society.

The senior counsel Vikas Singh appearing for the petitioner society said that the provision leaving aside 25 percent seats for the students coming from socially disadvantaged section of the society amounted to reservation and Right to Education Act (RTE) infringed upon their right to admit 100 percent of their students.

At this Chief Justice Kapadia said that what could be a reservation for the private schools could be a priority for the government. He asked under what provisions of the constitutions they (private schools) enjoyed an absolute right to admit 100 percent of their students without any say to the government or legislature.

‘Show us under which article (of the constitution) you have an exclusive right to admit 100 percent students’, the court said adding, ‘We will to see the entire scheme which includes 21 (a) of the constitution.’

‘Reservation, affirmation and privatization are different. You can see it as a reservation. I can call it priority. It has to be based on egalitarian system of civil society,’ the court observed.

The court said that legislature has ample power to make law and asked the petitioner private schools to explain how 25 percent reservation amounted to ‘unreasonable restriction on their right to admit students’.

When senior counsel Vikas Singh reiterated reservation was infringing their rights, Chief Justice Kapadia said, ‘Whether restriction is unreasonable is very difficult to answer. It can’t be answered without the study of constitution in the light of the Directive Principles of State Policy.’

The counsel argued that expanses being incurred on account of admitting these students would have a crippling affect on the schools. He told the court that government would be paying them what it was spending in its (government) schools. He said that reimbursement was only sequel to reservation.

‘Expenses are so high that they are killing us,’ Singh told the court.

At this court said that at the end of the day expenses are calculable and asked the senior counsel to show that they are ‘killing you’.

Right to education to cover secondary schools soon: Sibal

Human Resource Development Minister Kapil Sibal on Tuesday hoped the Right to Education (RTE) act will cover secondary schools in the coming years.

‘In the coming five years similar rights will cover secondary education,’ Sibal said while addressing a function organised by the ministry and UNICEF.

He said the act will address the problem of high dropout rates.

Educational institutions closed in Jammu

‘More than 60 percent of children admitted in primary schools never reach class 12th. We have over 80 lakh children who do not go to school, many countries don’t even have so much population,’ he said.

‘After children complete their secondary education, they can decide if they want to go to university, or do some vocational training,’ the minister added.

The Right to Education act , which came into force April 1, 2010, makes education a fundamental right for children between 6 to 14 years of age and is to be implemented for the first time in the country.

As per the act, every child in the age group will be provided eight years of elementary education in an appropriate classroom in the vicinity of his or her neighbourhood.