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Compulsory Schooling and Child Labour
by Ashok Agarwal*
Cite as : (2005) PL August (J) 13
Article 21-A, incorporated in the chapter on fundamental rights of the Constitution of India in December 2002, makes right to free and compulsory education of every child in the age group of 6-14 years, a fundamental right against the State. However, the core issue is whether Article 21-A of the Constitution has brought any change in the legal status of the child labour.
The Child Labour (Prohibition and Regulation) Act, 1986 (in short, the Child Labour Act, 1986) does not completely prohibit child labour in all forms. It permits children to work in all occupations and processes other than the hazardous ones. However, the Delhi Shops and Establishments Act, 1954 completely prohibits child labour below the age of 12 years. In fact, the distinction between hazardous and non-hazardous work in relation to a child is bogus.
In India, about 10 crore children below the age of fourteen years are not attending full-time formal school and are engaged in one or the other type of work.
Can a child realise the fundamental right to education, as guaranteed under Article 21-A, if he is simultaneously asked to continue as child labour? Child labour and right to education cannot go together.
The ILO Minimum Age Convention, 1973 (No. 138) came into force on 19-6-1976. Article 1 of the said convention provides that each of its members will pursue a national policy designed to ensure the effective abolition of child labour and to raise progressively the minimum age for admission to employment or work to a level consistent with the fullest physical and mental development of young persons. Para 2 of Article 2 provides that the minimum age shall not be less than the age of completion of compulsory schooling and in any case not less than 15 years. However, para 4 reduces this age limit to 14 years for members whose economy and additional facilities are insufficiently developed. In this way, the minimum age standards for employment are linked to schooling so as to ensure that children's human capital is developed to its fullest potential, so that they can make a greater contribution to economic growth and social development.
Moreover, Article 32 of the UN Convention on the Rights of the Child recognises the right of the child to be protected from economic exploitation and from performing any 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, etc.
The Second Labour Commission of the Government of India also noted,
"The only way to prevent child labour is to recognise that the rightful place of children is in school, not in the workplace or in the house."
The existence of child labour after fifty-seven years of independence of the country would make mockery of the right to compulsory schooling as envisaged in Article 21-A.
Several other rights of the child including right to health, right to mid-day meal, right to participate in society, right against child marriage, etc. can be best protected if the child is in the school and not at workplace. In order to give effect to the letters and spirit of Article 21-A of the Constitution, the government must take immediate steps to amend the Child Labour Act, 1986 banning child labour completely in all forms and providing severe penal provisions against its violators.
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* Advocate and Advisor, Social Jurist.
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