Saturday, December 20, 2008
MCD Primary School, IInd Shift, Main Road, Zafrabad, Delhi-53 is an Urdu Medium School having an enrolment of around 800 underprivileged Muslim students in Classes I to V. There are eight regular primary teachers plus six contract primary teachers plus one Principal, namely Shri Sirajuddin (M-9211534490) in this school. The students from the beginning of the academic year i.e. April 2008 were totally deprived of the benefit of all these eight regular primary teachers since these teachers were deployed to other non teaching work by the Government. These teachers were exclusively deployed for child census work in the month of April. May-June was school holidays. From July to November, they were deployed for Delhi Election work and from 30.11.2008 they have been deployed on election duty in Jammu and Kashmir and nobody knows when these teachers would return to school to teach the students.
In such horrible conditions, how we can expect these students to receive good quality education so to compete with their counterparts studying in fee charging private schools. It is a hard reality that the system is so designed by the rulers that the students belonging to the underprivileged sections are bound to be arbitrarily and unjustly discriminated and deprived of their basic educational rights. The Social Justice philosophy of our Constitution has been breached as a rule and followed in practice in exception.
Ashok Agarwal, Advocate
Advisor, Social Jurist
Wednesday, October 29, 2008
Shaina is not the only case where government school has denied readmission to a student after she recovered from her health. Monika, a student of Class VI of Government Girls Senior Secondary School, Ramesh Park, Lakshmi Nagar, Delhi was denied readmission by the school when she approached the school in April 2008 after she suffered from kidney infection and remained sick for about two years continuously and for reason thereof, she did not attend the school. Monika was readmitted in the school only after she had lodged a written complaint to Social Jurist and the Social Jurist wrote a letter dated 30.08.2008 to the Director of Education, Government of NCT of Delhi reminding him that the State is failing in its constitutional and statutory duties by not providing education to Monika.
It is submitted that the denial of admission to the school age children by the government schools is a clear violation of the fundamental right to education as guaranteed to these children under article 21 (right to life with dignity) of the Constitution of India. It is well settled law that when fundamental rights of the citizens are violated by the State, the State is liable to pay compensation to such aggrieved citizens. It is unfortunate that the Government of Delhi has not even initiated any departmental action against the erring officials of the education department who are responsible for violation of the fundamental right to education of these students. In fact, the denial of admission or readmission to a child who missed the school for medical reasons is a criminal act and must be dealt with all seriousness and firmness. It is high time that Governments must ensure accountability in the matter of providing quality education to all the children through Government Schools.
The students and their parents left no stone unturned in running from pillar to post in the education department of the government to convince their officials, up to the level of the Director of Education, that they have a right to admission in government school to pursue their education further. However, every one turned a deaf ear towards them. The government that promises education for all with emphasis on the education of the girl child closed all their doors for these unfortunate children of the masses.
Disgusted with the double standard of the government, the students approached me as a last resort to realize their basic human and fundamental rights to education and social justice as guaranteed to them under the Constitution of India. I took no time to make representations to the Director of Education thereby requesting him to look into the matter and ensure admission to the students. When no response was received from the education department, I filed writ petitions in Delhi High Court against the Delhi Govt. seeking admission of the students in government school. It is only after the High Court’s intervention, the government agreed to grant admission to the students.
The other day, I was attending a consultation meeting on ‘schooling for all’. The participants invariably pointing out that the government schools are refusing admission to the students on one pretext or the other. They wanted a solution to such a basic problem being faced by them every day. The consultation concluded without providing any answer to this problem. Being a latecomer, I lost the opportunity to address the meet on this issue. The object and purpose of narrating this success story of the students winning legal battle for admission is to share with public at large that the process of realization of right to education is undoubtedly full of difficulties but not impossible. While saying so, I am conscious of the fact that it is not easy for every student or parent to approach the court of law. They cannot afford to pay any money for the litigation. To make it easy, we need dedicated lawyers who can come forward and take up their cause in the court of law without charging any money on any account.
Monday, October 27, 2008
Ashok Agarwal, Advocate
Friday, June 27, 2008
Currently in India, a whole hierarchy of school education catering to the different groups of children has emerged posing a formidable obstacle to the establishment of an inclusive school education system. The absence of quality education in government schools is also due to the fact that there are many sets of different schools within the public education system. This variation itself amongst the government schools leads to the difference in the kind and quality of education so provided. Studies point out that in Kendriya Vidayalays (Central Schools), the annual expenditure on one child is around Rs.11, 000/- whereas in ordinary government schools, it is a meagre amount of Rs.1, 800/- p.a. Moreover, in the State funded and NGOs run non-formal schools, the annual expenditure on one child is around Rs. 900/- . This vast difference in the government expenditure itself indicates the varied pattern of education that is provided in these types of schools even though the schools are primarily governmental.
The discriminatory framework created through State funding is well illustrated by the following situation prevailing in Delhi:-
Schools run by the Central Government
i) Kendriya Vidayalayas;
ii) Jawahar Navodaya Vidayalayas;
iii) Sainik Schools;
Schools run by the Government of NCT of Delhi
i) Pratibha Vikas Vidayalyas;
ii) Model Schools;
iii) Sarvodaya Schools
iv) Normal Schools;
v) Non formal schools (EGS/NCLP)
Schools run by the Local Bodies
i) Model Primary Schools;
ii) Normal Primary Schools;
The Kendriya Vidayalayas, which are maintained and administered by the Central Government, are better funded and better equipped than the state government schools and admission to these schools is greatly sought after. For admission to these schools, a very rigid criterion is followed, wherein the children of employees of the Central Government get priority over others. Another advantage of these schools is that the medium of instructions is English, at least at the secondary stage. As stated above the studies point out that in Kendriya Vidayalays (Central Schools), the annual expenditure on one child is around Rs.11, 000/- whereas in ordinary government schools, it is a meagre amount of Rs.1, 800/- p.a.
The Pratibha Vikas Vidyalayas are run by the Government of NCT of Delhi and are prestigious government schools that have facilities and teaching at par with the high fee charging private schools in the Capital. Admissions to these schools are made on the basis of entrance tests given to children from government primary schools and municipal schools. These schools are resourced differently from normal government schools. Their class sizes are strictly governed by an upper limit of 30. Their teachers are chosen from among the cream of teachers in the government schools and the students are set apart in a uniform that distinguishes them as ‘the chosen’ ones. On the other hand, both normal government and municipal run schools though cater to the mass of children belonging to marginalised sections of people, are totally ill equipped to provide good quality education to the children. These schools invariably suffer from lack of basic academic and physical infrastructure which includes shortage of teachers, shortage of classrooms, overcrowded classrooms, broken desks, non-functioning fans and tube lights, absence of drinking water, unhygienic toilets, broken blackboards, teachers’ absenteeism, dirty classrooms etc. That the Non formal schools like NCLP and EGS schools are run by the Government of NCT of Delhi through NGOs for the child labour/children of migrant labour depend on untrained and unqualified teachers. They are run in private places having no basic facilities. The public expenditure in such schools is around Rs.900/- per child annually.
That within the present public education system, there exist different sets of schools for the children of different socio-economic status. It is submitted that the dispersion of the range of schools into hierarchically placed layers of schools to be attended by pupils placed in corresponding social and economic hierarchies may not have done anything to alleviate tensions about admission to school. Rather, the limited choices perceived as available to a socio economic class could in all probability have resulted in increased pressures to secure admission to schools of appropriate status. This variation of schools in various categories results in arbitrary discrimination amongst the children of this country. It is also submitted that these educational institutions were established to provide quality education with equal opportunities to all children but they aren’t serving their primary goal.
The multiple categories of schools with varying quality, which have emerged within the education system supported by public funding, have put a huge question mark on the objective of equality of opportunity in education. It is submitted that such type of layering within the government education system is violative of Articles 14 (right to equality), 15 (state to make special provisions for children), 21 (right to life with dignity), 21-A (right to education), 38 (right to social justice), 46 (state to promote education of SC/ST and weaker sections) & 51-A (k) (duty of parents to provide educational opportunity to children) of the Constitution of India.
The State is obliged to enforce Articles 21 and 21-A of the Constitution of India by putting all the schools within government system all over the country in an inclusive school education system where all the children regardless of their caste, creed, social or economic status should have equal opportunity of receiving quality education. It is submitted that the prevailing education system supported by public funding is exclusionary in nature resulting in exclusion of the children of weaker sections from receiving education of equitable quality. It is submitted that the State cannot adopt discriminatory provisions of schooling to cater to different groups using public funds as it would violate the basic principles of equality and social justice. Using public funds, the State has to provide schools of comparable quality to all the children who seek education through State or State supported schools.
It is suggested that the creation of different categories of schools with public funds involving discriminatory procedures of admission should be replaced with a standard framework with per capita expenditure and common framework for admission on principle of equality of opportunity. The government schools forming different categories should be clubbed together to form one concrete whole. They should function in a similar manner; have the same type of facilities and infrastructure available to every child so that there is equitable quality of education for all. This is also guaranteed under Article 14 of the Constitution of India, which provides for equality before the law. Thus, every child is entitled to equitable quality of education. It is, however made clear that the standard of education of good quality schools within the public education system should not at all be brought down. On the other hand, the standard of education of all the low quality schools within the public education system should be raised to the level of the best quality schools.
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Saturday, May 24, 2008
Surrounded by Mortuary, Coffin Shops, Open Dhalao (Garbage Disposal Bin) and Desi Liquor Shop, MCD Primary School, Bulevard Road, near Tis Hazari Courts, Delhi with 37 students of classes I to V, one teacher, unhygienic toilets, broken classroom door, dirty washbasin with broken tap, and unfinished blackboard is an example of utter neglect on the part of the government of their own schools. In other words, the government is violating with impunity the fundamental and human rights to education of the children of this country.
As a neighborhood school friend, I took the opportunity to visit this municipal school on 22.04.2006. The official school timings are 7.30 am to 12.30 pm. I reached the school at 8.30 am and found that all the students were just playing in the school compound and the Headmaster of the school was just sitting in a classroom and was busy with writing in a register, unmindful of what the students were doing. On that day, only 22 students were present in the school. On seeing me, he became alert and immediately called the students to assemble in the classroom. The students followed this directive and assembled in one classroom in which the Headmaster was sitting. As there is only one primary teacher posted in the school, all the primary classes are held in one classroom. A little later, I realized that the children were playing in the compound for the obvious reason that the solitary teacher had not yet come to the school. I just noted these facts in my diary. I also took photographs of all the students of different classes sitting in one classroom.
The Headmaster did not want to waste any more time. On one hand, he ordered the attendant for a cup of tea and some biscuits for me and on the other hand, he asked the students to line up in the corridor for Morning Prayer. On completing the Morning Prayer, the students were asked to do yoga exercises. It is interesting to note that the Headmaster who apparently did not know any thing about yoga was instructing the students to do yoga exercises. The Morning Prayer and the so-called yoga exercises lasted for about 10 minutes and all the children were again back in the classroom. It was now 9 am and the solitary teacher arrived in the school on the motorbike. I simply noted his arrival time in my diary.
The teacher was upset on seeing me in the school. After arrival of the teacher, the Headmaster asked the students of the classes IV and V to go to the other classroom. The students of classes I to III remained in the classroom where the Headmaster was sitting and the students of classes IV and V moved to the other classroom with the solitary teacher. The studies started in the classrooms. I stayed in the school for another half an hour and then left for my office.
This was my second visit to this neighborhood school. My first visit was on 04.03.2006. On that day, I had noted that the entire sewerage system in the school was in bad shape and there was a foul smell in the entire school premises. I also noted that three of the classrooms were used to store road repair material. The open dhalao was just in the front of the school gate. The garbage in the open dhalao was overflowing up to the gate of the school. On the same day, I brought to the notice of the school authorities about sewerage system and other problems noticed by me during my visit to the school. On my next visit on 22.4.2006, I found that the sewerage system was put to order and the road repair material was removed from the three classrooms.
All the students of the school belong to underprivileged sections of society. On 05.03.2006, I visited the locality from where these students come from and met the parents of some of these students. I found that though the parents had got their children enrolled in the school, they were indifferent to the education of their children. In such a situation, the students are totally dependent on the school. If the school authorities are also indifferent to the education of the students, one can imagine the fate of these students.
The school authorities cannot absolve themselves from their paramount responsibility of providing good quality education to the children merely for the reason that the parents are not taking interest in the education of their children. It is the constitutional mandate against the school authorities to device ways and means to ensure good quality education to all the children of this country. This school in the India’s Capital is lacking in all respects. The environment both in side and out side of the school is totally inappropriate for the education of the children.
The words in the preamble of the Constitution “ We, the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and to secure to all its citizen: Justice, social, economic and political: Liberty of thought, expression, belief, faith and worship; Equality of status and opportunity; and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation” have no meaning for these children. Similarly, the social justice philosophy of the Constitution and the fundamental right to free and compulsory education guaranteed to every child under Article 21-A of the Constitution have no meaning for these children. What is ironical is that though these children get the opportunity to go to school but they are uncared.
The Supreme Court of India in a recent decision in case of State of Bihar vs Project Uchcha Vidya, Sikshak Sangh (2006) 2 SCC 545 observed, “Imparting of education is a sovereign function of the State. Article 21-A of the Constitution envisages that children of age group 6 to 14 have a fundamental right to education. Clause 3 of Article 15 of the Constitution envisages special protection and affirmative action for women and children.” The tale of this neglected school negates all claims of the government of providing education to the children of the masses and addressing the issue of child labour.
The government schools are the only hope for the children of the masses and therefore, these needs to be set right. Civil Society has not only the role but also an obligation to work for the betterment of the government schools and for complete abolition of child labour. The community intervention in the school education is the only mantra to improve these schools and to abolish the child labour.
By Ashok Agarwal
A fervent desire to fight for the rights of society saw a student of BA walk into the courts as a trade union representative. That was in 1969, today having armed himself with a degree in Law, the same man dons the black robe to continue his fight.
Ashok Agarwal, advocate and convenor of the NGO Social Jurists, is convinced that as a lawyer it is his privilege and duty to take up the cause of the poor and the marginalised. His talisman, he asserts, is “courts to people and people to courts”.
Refusing to bow to the inertia that benumbs society at large, be it government offices or educational institutions, Mr Agarwal is steadfast that for every problem there is a solution.
Having assimilated the problems that ail civil society he takes refuge in the power that is rooted in the scales of justice, “Courts can be seen as the best platform for highlighting the cause and exposing the government to some extent,” he points out.
You have managed to take up issues that concern education and sought aid for the deprived sections. How did you decide to get involved in the cause?
Being a labour lawyer with a trade union background and fighting cases for the labour class and against the establishment for the last 33 years from the labour courts up to the Supreme Court, I have closely seen the plight of the labour class in this country. Through the introduction of public interest litigation (PIL), I got an opportunity to use judicial forums for ventilating the grievances of the common man, who is incapable of fighting for his rights directly.
I filed my first PIL in 1978, in the High Court of Delhi, highlighting the delay in appointment of the Presiding Officers of the Labour Courts/ Industrial Tribunals in Delhi and also shortage of other staff in these courts, causing immense delay in adjudication of industrial disputes.
When parents under the banner of Delhi Abhibhavak Mahasangh came out on the roads in 1997, protesting against arbitrary and unjustified fee hike by unaided recognised private schools in Delhi, I offered them free professional services and took up their matter with the High Court.
While I was preparing the PIL against exorbitant fee hike by so-called public schools, I found that one of the main causes of exploitation of parents by these schools is the continuous deterioration in the standard of education in the government schools.
This is when I decided to take up the cause of the children studying in government schools. In December 1997, I filed a PIL highlighting the absence of basic amenities like drinking water, toilet blocks, electricity, pucca building, boundary walls etc in Delhi government and MCD-run schools, which was a violation of the fundamental right to education as guaranteed by the Constitution.
What laid the ground for NGO Social Jurists?
Social Jurists is an unregistered and non-funded organisation of a group of lawyers. Members of this group, besides doing their professional work, devote themselves to the cause of the weaker sections. We are clear that we are doing it as our duty and not as charity. We don’t accept any money in any manner from anybody for taking up these causes.
We pay from our own pockets because we believe in making friends. We go to people, befriend them, identify their problems and examine what can be legally done for them. Once we are convinced that taking up their cause in the courts can solve their problem, we prepare and file PIL in the name of Social Jurists.
We also try to educate people on how to fight for their rights. We are convinced that courts alone cannot solve all problems of the people and, ultimately, people have to fight their own battle. We are using court orders for empowering the people to understand that authorities can be moved if rights are asserted and fought for.
The Public Interest Litigation filed by Social Jurists have resulted in favourable judgements for the people and the society at large. What have been, according to you, the most memorable and also the toughest cases so far?
Cases pertaining to fee hike by unaided recognised private schools, absence of total basic amenities in relocated resettlement colonies, free beds for poor in Apollo Hospital and Lal Kuan fire tragedy are the most memorable and also the toughest cases so far.
You have fought for the rights of the people living in resettlement colonies and for the rights of rag pickers. Working with the government departments and making your way through the red tape must have been quite an experience.
Yes, but my experience is that if right issues are taken up with honesty, forcefully and strategically, even people who constitute the government are moved. There are lots of good people in the government who want to work but are not allowed to work. Court interventions help them work. Reputation of an activist also influences the officers’ approach.
Court’s intervention, highlighting of the issue by the media and formation of public opinion has really worked in pressuring the government to respect the rights of the common man. Poor people feel empowered when they see that the court takes the government to task.
You have earned respect and acclaim as a crusader for providing people what is their due, how did you deal with the pressure and even threats that you must have encountered on the way?
I have never bothered about the pressures and the threats. If your are strong and determined no one dares to threaten you. I have been threatened just once by a police officer, who threatened to arrest me because I was leading a community demonstration at MCD school, Hastsaal Resettlement Colony. We were protesting against horrible conditions in the school.
When the entire community offered to court arrest alongside me, the police officer withdrew the threat and started showing sympathy with the agitators. My experience is that when you fight for the people in right way and for right cause, even your opponent has to appreciate you.
You recently organised a seminar to discuss the concerns of the Common School System. You have been interacting with not just academics, but also other stakeholders. What is your evaluation about the CSS and the Education Bill?
Establishment of CSS is a must for giving socio-economic and political justice to the people. The Education Bill is totally defective and must be rejected by the people. The Education Bill is totally contrary to the object underlying therein. Government must redraft the Education Bill on the basis of good quality Common School System.
What are your concerns as a lawyer about the legal profession?
Friends in the legal profession are a very powerful segment of the society. Now, the composition of legal profession is not the same as it was 20-30 years ago. A large number of friends in legal profession are from economically weaker sections of society and they can do wonders in changing the society if they devote some of their time for the cause of the poor, but as a privilege and duty and not as charity.
For the common man courts and lawyers are best kept at a distance. Your comment?
Tuesday, May 20, 2008
The issue though had been, of and on, appearing in the newspapers but no concrete step was ever taken to put it in action. During the pendency of a Public Interest Litigation (1997-1998) relating to arbitrary fee hike by the unaided private schools, the Hon’ble Delhi High Court directed DDA to furnish details of the schools to whom they had allotted land on throw away prices. In compliance of such directions, the DDA furnished details of 265 societies/trusts to whom land was allotted for construction of the schools. Based on this material information, the Social Jurist filed a Public Interest Litigation (PIL) on 17th may 2002 in the Hon’ble Delhi High Court highlighting the facts that there are more than 1500 unaided recognized private schools in Delhi and more than 1200 of these schools have been allotted land on throw away prices.
The Social Jurist submitted that one of the objects behind it was that such schools discharge their social obligations to provide free education to a certain percentage of children belonging to weaker sections through their schools. It was also submitted that in case of most of the schools, an express condition that they shall ensure admission to the children belonging to weaker section to the extent of 25% and will grant them freeship. However, in some cases though it has been said in the allotment letter “ that the society shall ensure percentage of freeship from the tuition fee as laid down under rules are strictly complied with” but the rules have not so far being framed either by the Delhi Development Authority or the Delhi Government in this regard leaving such schools to exploit the situation against public interest. However, it was understood that the authorities have obtained an undertaking from all the schools at the time of allotment of land to the effect that they would ensure admission to the children of the weaker section to the extent of 25% and grant them freeship.
The Social Jurist submitted that, unfortunately, none of these schools has complied with the aforementioned conditions of allotment and the authorities were totally insensitive and apathetic towards the rights of the downtrodden, as they had not taken any action against erring schools. It was submitted that the actions/inactions of the government as well as of the land owning agencies were adversely effecting fundamental right to education of the children of the masses which were guaranteed to them under Articles 21, 38, 39 (c) & (f), 41, 45, 46, 51 (b) & (f) read with Delhi School Education Act, 1973, Universal Declaration of Human Rights (1948) and UN Convention on the Rights of the Child (1989).
That even after filing of the above PIL and notices having been issued to the Government of Delhi and Delhi Development Authority, these authorities did not take any action to implement the aforementioned social clause against the erring schools. On the other hand, the Government as well as the land owning agencies adopted dilatory tactics to frustrate the very object and purpose of the PIL.
However, on Jan 20, 2004, the Hon’ble High Court decided the PIL holding, “Thus, it is very clear that 25% of the students belonging to poor sections are entitled to get admission and free ship in such schools. However, it would be for the Directorate of Education to investigate the matter and to point out to the DDA wherever a breach is committed. If there are no rules for admission framed in this regard, it would be for the Directorate of Education to see that the rules are framed so that the weaker sections of the society may not suffer. It is hoped that within a period of four months this exercise shall be carried out and, after the DDA is informed, it will be the duty of the DDA to take appropriate action against any school committing breach of the condition. A compliance report be filed by the Directorate of Education after four months. “
That on 27.04.2004, the Delhi Government issued a circular detailing the eligibility criteria, method and manner of admission of children from Economically Weaker Sections (EWS) in the unaided private schools. On the same date, the Delhi Government also issued public advertisements in all the leading newspapers detailing the particulars of the schools that were obliged to follow the social obligation clause. This paved the way for enlightening the parents to approach the schools for admission of their wards under EWS category. It is needless to say that the Government took these steps only when the Social Jurist again approached the Hon’ble High Court complaining that the government has been given four months time to carry out exercise of investigating the matter and pointing out to the DDA wherever the breach was committed, but the process of such exercise had yet not started though a period of nearly three months had already elapsed. On the same day, one more important event took place. The Hon’ble Supreme Court in another case directed the Government to ensure the compliance of this social obligation clause against the concerned unaided private schools.
The schools reacted very insensitively. In order to oppose the entire move, the schools did not hesitate even arguing that the children of the weaker sections, if allowed to be integrated, they would spoil the school environment. They even went to the extent of provoking the parents of the fee paying students to oppose the move saying that such children, if allowed to sit with their children, would adversely affect the well-being of their children. Interestingly, the schools could not find even a single genuine parent standing in their support to oppose the move. The parents were wise enough to realize the advantages of such integration on one hand and the ulterior motives of the schools on the other hand.
During the academic years 2004-05 and 2005-06, few thousands admissions of the children under EWS category took place. Most of the schools did not adhere to the social obligation clause at all. The Hon’ble High Court at one point of time was so angry with the erring schools that it ordered show-cause notices to a hundred such schools as to why their schools should not be closed down. The regular monitoring by the Hon’ble High Court, persistent efforts of the parents and the support of Right to Education Task Force (RETF) are the leading factors in the present fight for social justice.
During these two academic years, the parents/children had both good and bad experiences. Some of the schools well behaved with the children whereas some others maltreated and discriminated them. The Hon’ble High Court in order to ensure dignified treatment to these children directed the Hon’ble Chief Minister of Delhi to hold meeting and to resolve all the issues. The Hon’ble Chief Minister constituted two committees, one headed by Prof. Krishna Kumar to suggest modalities of admission and other headed by Prof. Janaki Rajan to suggest measures for sensitizing the school management/staff. These two Committees submitted their reports to the Hon’ble Chief Minister and thereafter, the government has issued Delhi School Education (Free Seats for Students belonging to Economically Weaker Sections) Order, 2006 detailing the eligibility modality and manner of admission.
The parents from EWS category are very much excited to get their children admitted in the unaided schools and to avail the benefit of freeship. They are finding it very difficult but not impossible to get their children admitted in unaided schools. All the Sub-Divisional Magistrates offices, which are required to issue family income certificates for this purpose, are witnessing parents in large number applying for such certificates. Once, a Sub-Divisional Magistrate personally complained to me that this provision has tremendously increased his workload and he has to sign 2000 such certificates every month.
Prof. Nalini Juneja from NUEPA contributed in our efforts by providing details on the social issue from the research paper of NUEPA. Her writings were the guiding force for us to present the parents/children viewpoint everywhere including before the Hon’ble High Court and the Committees etc. The schools started separating classes for the children of EWS, frustrating the basic purpose of the inclusive education. The battle was to be fought out of the court also as the parents from EWS approaching the schools were denied the facilities on one pretext or the other. The Right to Education Task Force (RETF) was formed to help the parents and bringing their complaints to the notice of the authorities and the Hon’ble Court. It is needed to expand the scope of this movement in other cities also so that the basic purpose of social justice could be achieved.
Thursday, May 8, 2008
"We have approached the minister for tabling the right to education bill in parliament soon. And he assured us that the bill will be tabled in the coming monsoon session," said Ashok Agarwal, who was member of the delegation.
The delegation included Mridula Mukherjee, director of the Nehru Memorial Museum & Library, and Amarjeet Kaur from the All India Trade Union Congress.
"The bill is important because it is the first step in the direction of the government's active role in ensuring implementation of the constitutional amendment," said Agarwal.
Sunday, May 4, 2008
The Principal Secretary (Health)
Government of NCT of Delhi
Secretariat, I.P. Estate.
Sub: absence of anti-rabies vaccine in Delhi Govt.
and MCD run Hospitals in Indian Capital
It is brought to your kind notice that I have received a complaint on telephone today from Mr. Ramesh Kumar r/o H. No- 147, Village Badli, Delhi (M-9213532168) that his 12 years old son Akash Yadav was bitten by a stray dog early in the morning today. He first rushed to the govt. dispensary in Sector – 18 near Badli village, then to the to B.R. Ambedkar Hospital, Rohini, then to Babu Jagjivan Ram Memorial Hospital, Jahangirpuri, then to Hindu Rao Hospital where he was advised to go to Dr. Ram Manohar Lohia Hospital as none of the aforesaid hospitals were having the availability of anti-rabies vaccine. At the time of writing this letter, the patient is on his way to Dr. Ram Manohar Lohia Hospital and I am not sure if he really gets treated there.
It is a serious matter as it involves violation of fundamental right to health of the citizens.
Kindly look into this matter on urgent basis.
Ashok Agarwal, Advocate
Advisor, Social Jurist
NEW DELHI: Forty-seven-year-old Arun Gupta, a businessman who was shot in the neck, died of his injuries after battling for life for nearly three hours on Monday morning. In fact, his son, Harshal, has alleged that the first hour — considered to be the golden hour for such victims — was spent in rushing him from one hospital to another which turned him down though a prominent hospital has denied any such incident.
According to two SC judgments, no doctor or hospital can deny life-saving emergency treatment to a patient. In two landmark judgments — Parmanand Katara vs Union of India and Paschim Banga Khet Mazdoor Samiti vs State of West Bengal — the Supreme Court upheld every person's right to life. In Parmanand Katara Vs Union of India, the victim was seriously injured in a road accident and was in need of immediate treatment. As it was a medico-legal case, most hospitals refused to treat him until police arrived. The victim later died of his injuries.
"In Parmanand's case, Supreme Court held that all doctors — both in government and private — have a professional obligation to treat emergency cases to protect life. In the Paschim Banga case, the SC held that lack of financial resources couldn't be a reason to deny treatment. It is every patient's right to get emergency treatment," said Ashok Aggarwal, a lawyer in Delhi High Court.
- THE TIMES OF INDIA
Sunday, April 20, 2008
The aforesaid incident came to the notice of Advocate Ashok Agarwal when he visited the school on 04.04.2008. On entering the class V, he saw an old lady sitting on a chair in the classroom. On enquiry from the class teacher, he came to know that the old lady is the grandmother of the student Madan and she had came to school in connection with the incident of 2nd April. The old lady and the students narrated the incident to him. He was shocked to hear about the incident. He immediately took both the students and the old lady to the nearby police post of Burari and requested the police post in-charge to lodge the report. One Head Constable recorded the statements of both the students on a piece of paper and assured that necessary action would be taken. Thereafter, the students and the old lady were dropped back at the school. The Head Constable informed Mr. Agarwal in the evening that the FIR could not be registered without the permission of the Juvenile Justice Board as all the four assailants were minor.
The aforesaid incident gives rise to several serious issues like, safety of school students, increasing teenagers’ delinquency, relevance of existing laws and functioning of the juvenile justice system etc. It may not be out of the context to mention that the Sunday Times of India, New Delhi, April 20, 2008 reported that an eight-year-old girl was crushed to death by a school bus in Hastsal area near Uttam Nagar early on Saturday. Kajal, a student of class II of a government school, was walking down to her school around 7.30 am when a minibus carrying students of a private school in Vikaspuri reportedly hit her killing her on the spot. The Times of India, April 17, 2008 reported that in one of the worst road disasters in Gujrat, 41 children and three adults drowned in the Narmada main canal when a state transport bus crashed and plunged the railings of a bridge and plunged 60 feet, or about five storeys, into the canal at 6.15 am on Wednesday. The young victims were headed for school for the penultimate paper in the annual exams when the driver lost control of the rickety government-owned bus after its axle broke.
Saturday, April 19, 2008
Social Jurist team consisting of Advocate Ashok Agarwal and Law Student Tanya on Monday, 14 April 2008 visited the MCD Primary School, Anand Vihar II, Delhi (India).
The school is run in two shifts. The girl students study in the morning shift and the boy students in the afternoon shift. The strength of the boy students in the afternoon shift is around 550. All these students are the inhabitants of the nearby slums. Some of them were not in the school uniform. Some of them were not even in shoes. The attendance of the students was also poor. There was no one to man the school gate. We were told by the principal that school does not have an attendant. Other observations are as under.
(1) Though the academic session has started from 01.04.2008 but the students have not been provided with the books and stationary so far. Less than 25 % of class V students were having few books belonging to the out going Class V students. In all other classes, some of the students were having few books which were provided to them by the school from its last year’s stock. The similar situation must be prevailing in all most all the 1800 MCD run Primary Schools in Delhi. Is any body accountable for it? It is the duty of the school authorities to provide to all its students all the books and stationary at the beginning of the academic year but it has never happened. It only reflects the degree of seriousness on the part of the authorities to provide quality education to these children of the masses. The school authorities deliberately do not want that these children should get equal educational opportunity to compete with their own children who are not studying in these municipal schools. It would not be wrong to say that it is all due to caste and class bias.
(2) No proper electricity in the classrooms. The students were studying in the classrooms without proper light and even the fans were not working properly.
(3) No proper benches for the students to sit: - firstly, there were not enough benches as compared to the class strength. Most of the benches had no back support. Secondly, on a bench for two students, as many as four students were found sitting. It is happening when many students are absent. Imagine the situation when all the enrolled students are present in the classroom. The students’ absenteeism was alarming. Many of the class I students were found sitting on a dirty rug.
(4) No proper toilets for the students to use: - the condition is so bad that the students are forced to urinate outside the toilets and that makes the whole place stink whereas the teacher’s toilets were clean. The principal told us that the sweeper is not attending duties for the last so many days and the school has no other alternative arrangement. All the classrooms except that of the computer room were dirty. A heap of garbage and a broom in one corner of all most all the classrooms was a common feature. It appears that some one or may be the students in the morning shift might have cleaned the classrooms and then kept the heap of garbage and the broom in one corner of the classrooms.
(5) Impure drinking water: - at least two water tanks did not have a lid. The students were refilling their water bottles from the same unhygienic tank and the school authorities paid no attention to this.
(6) The teaching staff was complaining that the classrooms are not enough. At least two more classrooms are required. We have noticed that one big room used to accommodate the nursery class students of the Ist shift is not made available to the IInd shift school. The reasons are not known. Two rooms are used as offices of the different shifts principals. One room is used for storing Kabar. It appears that the shortage of the classrooms is artificial and due to mismanagement.
(7) It is pertinent to mention that the roof of the entire school building is made of asbestos sheets. The roofs of some of the classrooms had holes. There was no white washing in the entire school building for years. The students in the classrooms were feeling uncomfortable due to hot temperature. A pucca building is immediately required to provide a conducive environment to the students.
The Hon’ble Supreme Court in the recent judgment in the “reservation case” highlighted the failure of the Government to implement the constitutional mandate of free and compulsory education to the children. Government is making tall claims but the ground reality is that the government has made a mockery of the fundamental right to education.
Ashok Agarwal, Advocate Tanya, Law Student
A well known adage that “JUSTICE DELAYED IS JUSTICE DENIED” could not have a better example than the case of the 50 female workers of the Super Bazar, the Cooperative Store Ltd., New Delhi (India) who have finally been paid the difference in pay between male and female workers doing the same or similar work, amounting to a paltry sum of Rs. 5210.40 each, without any interest or any compensation whatsoever, after 20 long years of protracted and heroic legal battle. The most positive aspect of this long and arduous legal battle is that the female workers could not have won the case without the dedicated and unrelenting support and solidarity rendered by the legal fraternity who stood by them through thick and thin over 20 long years.
This case highlights not only the individual sufferings of female workers, the discriminatory treatment in work and pay to which the female workers are subjected even in Government enterprises, the pitfalls of the justice delivery system but foremost the fact that the final outcome may be seen only as a pittance in terms of money alone but which otherwise is a golden harvest in terms of the lessons that it has regarding availability of committed and quality legal services for the weak and down trodden in a society overridden by inequity, discrimination and injustice. Advocate Ashok Agarwal who also happened to be the Secretary of the Super Bazar Employees Union, provided his expertise legal services to these female workers right from identifying the violation of the Act, filing of claims before the Authority and representing them to the last.
These female workers as back as in April 1987 filed their claims before the Authority under Equal Remuneration Act, 1976 seeking computation of difference of pay for the period from 01.09.1984 to 31.03.1987 amounting to Rs.5201.40 each. It was submitted that they were working as piece rate packers since 1978. On 08.10.1984, the Super Bazar issued orders regularizing the services of the piece rated female and male packers in the regular pay scale w.e.f. 01.09.1984. What the Super Bazar did was that all the female piece rated packers were given the pay scale of Rs. 150-360 whereas the male packers were given the pay scale of Rs.185-440 though both female packers and male packers continued to perform same and similar work, which they had been performing prior to 08.10.1984. It is interesting to note that one Sujjan (female worker) was included in the list of men workers and so was getting a higher remuneration but when it came to be known that she was a female worker, her name was excluded from the list of male workers and included in the list of female workers and her remuneration was reduced.
The Authority by orders dated 13.05.1988 allowed the claim of the female workers. The Super Bazar filed appeal before the Appellate Authority. The Appellate Authority by orders dated 06.03.1989 reversed the order of the Authority and dismissed the claim applications of the female workers. The female workers filed writ petition in the Hon’ble Delhi High Court in 1989 challenging the orders of the Appellate Authority. A Single Judge bench of the High Court by Judgment dated 13.08.2004 reversed the orders of the Appellate Authority and restored the orders passed by the Authority. The Super Bazar filed appeal before a Division Bench of the High Court and the Hon’ble Division Bench was pleased to dismiss the appeal on 29.05.2005. Thereafter, the female workers approached the Labour Department for implementation of the orders. . The amounts have been disbursed by the Super Bazar only in the months of March-April 2008.
The High Court took the view that the concept of the equality in all its aspects is enshrined in Article 14 of our Constitution. There may be some discrimination on certain well defined principles but in the matter of pay-scales, there cannot be any inequality or discrimination only on the ground of sex. In fact, Article 39 (d) of the Constitution also provides for equal pay for equal work. The constitutional basis for the claim of the petitioners is, therefore, firmly established and needs no elaboration.
It is unfortunate that some of the female workers have died and could not enjoy the fruits of their dedicated fight against gender injustice. It is submitted that after the High Court decisions, the Super Bazar ought to have at their own paid the difference of pay for the period from 01.04.1987 onwards till the female workers remained in its services but it has not been done and the female workers have been compelled to go for another round of litigation. Is it not a travesty of justice?
The Equal Remuneration Act, 1976 is one of the significant social legislations aimed at providing gender justice in regard to the pay and emolument in the matter of same or similar work between the male and the female workers. Section 4 of the Act provides that no employer shall pay to any worker, employed by him in an establishment or employment, remuneration, whether payable in cash or in kind, at rates less favourable than those at which remuneration is paid by him to the workers of the opposite sex in such establishment or employment for performing the same work or work of similar nature.. In terms of Section 9 of the Act, it is the duty of the Government to ensure that the provisions of this Act are complied with. Section 10 of the Act makes the non-compliance of the provisions of the Act punishable with fine which shall not be less than 10,000 rupees but which may extend to 20,000 rupees or with imprisonment for a term which shall be not less than three months but which may extend to one year or with both for the first offence, and with imprisonment which may extend to two years for the second and subsequent offences.
It is a well known fact that the female workers particularly in unorganized sector are quite often discriminated against in the matter of pay and emoluments and the government is merely a mute spectator. However, there are rare cases having been dealt with under the provisions of this Act. This social legislation is more often violated with impunity. This long successful battle having been fought by the 50 female workers of the Super Bazar at least gives a hope to the masses that the rights are won by dedicated struggle, no matter how long this struggle may be. However, one cannot loose sight of the fact that without the help of committed and dedicated legal expertise, such successes are difficult to achieve.
(author can be contacted at Email: firstname.lastname@example.org, M-09811101923)
Monday, April 7, 2008
As a part of this programme, a batch of 20 such teachers from different primary schools were attending 14 days training class in computer education at Teachers Training Institute, Shakti Nagar Extension. Since the schools were functional, the students would remain without teachers during all these 14 days.
On 05.04.2008, while visiting MCD Primary School at Shakti Nagar Extension, I also got an opportunity to visit the said training institute as it happened to be in the same premises. What I found there was very much unexpected. I found that though all the trainees’ teachers were present and busy with computers but without their trainer teacher for the entire day. Interestingly, they were seemed not even bother about the absence of their teacher.
Ironically, at the same time, both the students at the school and their teachers at the training institute were facing the same problem of the “absence of teacher’.
Ashok Agarwal, Advocate
Advisor, Social Jurist
Friday, March 21, 2008
The most significant aspect of the Hon’ble Supreme Court judgment is that it has finally set at rest the controversy whether government has the authority to regulate the fee and other charges of unaided recognized private schools to prevent commercialization of education. The Hon’ble Supreme Court has categorically held that the government has the authority to regulate fee of unaided private schools.
In the wave of the High Court decision, the Delhi Government issued order dated 15.12.1999 laying down the methodology of determining the fee and other charges by the unaided private schools. The Delhi Government by another order constituted Fee Grievance Redressal Committee to deal with the complaints of the parents relating to fee hike.
Despite the High Court and the Supreme Court decisions and the Delhi Government orders, the exorbitant fee hike every year remained unabated. Only few parents dared to raise their voices while rest suffered in silence. The government, which has not only powers but also duty to check exploitation of hapless parents, simply remained a mute spectator and allowed the greedy school owners to commercialize education with impunity.
The current news reports are indicating that the sixth pay commission is likely to recommend an increase of up to 42% in the salaries and pension of central government employees. It is a welcome step but the unaided private schools should not be allowed to take undue advantage of the same. The academic year is going to start from April 01 and it is time to hike the fee and other charges notwithstanding whether the same is required or not. On the pretext of the contemplated recommendations of the sixth pay commission, the schools are getting ready to hike the fee and other charges from 100% to 400% which is bound to give a big jolt to the middle class parents. It is reminded that Articles 21 (Right to life with dignity) and 21-A (Right to education) of the Constitution mandate State to provide free and compulsory elementary education to all the children. The unaided private schools being the extended hands of the State are also obliged to follow this mandate.
The fact is that there is no need for most of the schools to hike fee and other charges on the ground of the contemplated sixth pay commission recommendations. All the schools have been hiking fee and other charges every year. Moreover, these schools have accumulated huge surplus money by charging students exorbitant fee and other charges during the past years. The inspection reports regarding more than 200 leading schools having been prepared by the Education Department of Government of Delhi during the last two years clearly support these facts. It is estimated that if the Supreme Court judgment is implemented, the present fee level will come down by 60%.
The Government of Delhi must rise to the occasion and take steps in advance ensuring that the unaided private schools are not allowed to hike fee and other charges exorbitantly, unjustly and arbitrarily on the pretext of the contemplated recommendations of the sixth pay commission. The middle class parents should raise their voice to save them from the exploitation. It is a wake up call.
Sunday, January 27, 2008
January 27, 2008
India deprives own poor in bid to be aid donor
Dean Nelson, Delhi
A BRITISH plan to help India become a leading aid donor despite being home to a third of the world’s poor has been fiercely criticised by campaigners in both countries. Gordon Brown backed the plan during a visit to India last week, when he announced more than £800m in aid over the next three years while praising its growing prosperity.
India now has more billionaires than Britain, Brown said, and the time was right for the two countries “to use our combined knowledge and resources to expand this partnership to tackle poverty globally”.
Last week British officials said that although India desperately needs aid to curb extreme poverty, it regards itself as a rising global power and wants to be seen as a donor rather than a recipient. Even though Britain gives more aid to India than any other country, it will in future be regarded as a “global partner” in poverty reduction, rather than a poor beneficiary of UK charity.
In recent years India has declined relief shipments after the 2004 Boxing Day tsunami, given aid to America after Hurricane Katrina and become a donor in Afghanistan. British aid officials said last week that India had some notable development successes which could be adopted for Africa.
“We can take what works, like getting children into primary education, and export that to Africa,” said Susanna Moorhead, head of Britain’s Department for International Development in India. She said while India has between 350m and 400m people living on less than 50p a day, it wants to take “its rightful place in the world”. She will work with officials in Delhi to identify African countries that could benefit from Indian expertise.
The plan has met with disbelief among the antipoverty campaigners in India, who say that the country should put its own house in order before taking on the problems of Africa. They said the scale of India’s poverty was so great that all available resources and talent should be focused on helping its own people first. “India should not be distracted with helping other countries meet their goals when it has so far to go to meet its own,” said Ashok Agarwal, a lawyer and child poverty campaigner.
Professor Praveen Jha, a United Nations adviser, said that in eight of India’s 17 states, poverty was increasing. “In malnutrition, India’s record is worse than most of sub-Saharan Africa,” he said. “My request to Indian officials is: please address things in your own country first.”
Friday, January 18, 2008
Delhi High Court
Sub: Rampant Child Labour in Tis Hazari District Courts, Delhi
It is brought to your kind notice that employment of children in dhabas (road side eateries), restaurants, hotels, motels, tea shops, resorts, spas or other recreational centers is prohibited w.e.f. 10.10.2006 under Child Labour (Prohibition & Regulation) Act, 1986. Similarly rag picking by the children is also prohibited w.e.f. 10.05.2001 under the said Act.
It is unfortunate that inspite of the aforesaid prohibitions, the number of children engaged in both the aforesaid occupations and processes have been increasing tremendously day by day in Delhi. It is all due to the failure on the part of the Govt. to implement the provisions of the said Act.
It is disgusting to see that almost everyday, a large number of child rag-pickers enter into the premises of District Court Tis Hazari, Delhi and collect rags. Similarly almost all tea shops and dhabas being run within the District Courts premises frequently employ children to clean utensils, supply tea to the customers, etc. On interacting with some of these children, it has been found that they are not at all attending school. All these children are below 14 years of age and the employment or engagement thereof, not only takes away their childhood, but also constitutes an offence under the provisions of Child Labour (Prohibition & Regulation) Act, 1986.
It is submitted that the child labour is a national shame and needs to be dealt-with firmly. Some of the photographs taken by me in the morning of Tuesday, 15 Jan 2008, of the children found working within the premises of the District Courts are pasted below.
It is, therefore, requested that necessary steps may be taken to ensure that no one is allowed to employ or permit child labour within the premises of District Courts of Delhi and those found violating the same should dealt with strictly.
With warm regards,
Saturday, January 12, 2008
478-479, LAWYERS CHAMBERS, WESTERN WING, TIS HAZARI COURTS,
Phone- 011-23910014, 09811101923
More than 100 students of Delhi Government and MCD run schools in a meeting held today (12.01.2008) in Jhangirpuri, Delhi have resolved to constitute a body, namely, “Delhi Schools Students Forum” to protect child rights and particularly the right to education. A 35 member adhoc committee has been formed with Sanjeeda, Sarita, Jatin, Nafeesa, Ankit Saxena, Neha, Arun Kumar, Shiva, Jyoti, Manisha, Arshi, Priti, Rahul Kumar, Abda, Ankit, Mryalida, Ratan Lal, Sanjeed, Radhika, Geeta, Nasreen, Poonam, Rabiya, Yashmeen, Asma, Seema, Sandeep, Sonali, Krishma, Laxmi, Monika, Komal, Paramjeet Kaur, Purnima, and Mamta to take steps to enrol more and more members and also to take necessary decisions on behalf of the Forum. More members to this committee shall be added in due course of time. Shri Ashok Agarwal, Advocate and Advisor, Social Jurist and Shri Akbar Ali, Coordinator, Chetnalaya(NGO) have ageed to act as facilitators. A child going to any school in Delhi shall be eligible to become a member of this Forum without payment of any fee. The slogan of the Forum shall be ‘MERI AWAJ SUNO’
It has also been resolved that in order to draw attention of the authorities, the students of the government and the mcd run schools may abstain themselves from the classes on February 05, 2008 to protest against the poor quality of education in these schools.
Ashok Agarwal, Advocate
Advisor, Social Jurist
Saturday, January 5, 2008
On June 02, 2005, with the help of my friend Junned, a social activist, I got an opportunity to personally visit fourteen to fifteen zari factories situated in the narrow streets of Zafarabad of East Delhi and found an average of about 25-30 children between the age group 4 to 14 years working in each such factory in most inhuman conditions. I was told with some definitiveness that in that very area, there are around five hundred zari factories in which not less than five thousand children are working. Almost all these children belong to Sitamarhi district of Bihar and have been brought here through middlemen on the pretext that they would become karigar (mechanic). The rescue operations are a welcome step but it loses its importance and purpose, the moment the rescued child is re-cycled as child labour. Society at large is rightly not taking these rescue operations seriously knowing well that these are very often simple gimmicks.
It is estimated that in our country there are about 10 crore child labour. In Delhi alone, there are about 14-15 lakhs child labour out of which more than 5 lakhs have been brought from outside Delhi. The number of child labour in the country is increasing day by day despite government’s claim to the contrary. Why is all this happening? These are the children who are totally denied the educational opportunities and have been forced to engage themselves in one or the other work. Those keeping child labour must be severely punished but unless the educational opportunities are made available in the real sense, punishing the employers is not sufficient. In this article an attempt is made to examine the various laws dealing with child labour and juvenile justice, to pin point the lacunae in these very laws that are responsible for the unabated continuance and growth of child labour. At the outset, it appears that the present laws are so bad that these work for the perpetuation of the child labour system rather than for its complete abolition.
The Child Labour (Prohibition and Regulation) Act 1986 prohibits the engagement of children in certain employments and regulates the conditions of children in certain other employments. Besides the fact that this Act needs to be amended in the light of Article 21-A of the Constitution of India which guarantees every child compulsory schooling up to the age of fourteen years, it is significant that this Act neither prohibits completely all forms of child labour nor it lays down any provision for educational opportunities to the rescued child labour.
The Juvenile Justice (Care and Protection of Children) Act, 2000 which of course in its preamble talks of providing care and protection to the children in need of care and protection but examination of various provisions of this Act would reveal that so far as child labour is concerned, it only provides for repatriation of such children to their parents and nothing more. It is silent on ensuring educational opportunities to such children. What will happen after repatriation, and whether or not the rescued child is re-cycled as child labour, is none of its concern. In other words, the Juvenile Justice Act is providing a smooth way for re-cycling of the rescued child labour.
The Bonded Labour System (Abolition) Act, 1976 merely provides for the abolition of bonded labour system with a view to preventing the economic and physical exploitation of the weaker sections of the people but does not at all deal with the rehabilitation of bonded child labour. Similarly, the Beedi and Cigar Workers (Conditions of Employment) Act, 1966, the Factories Act, 1948 and the Motor Transport Workers Act, 1961 prohibit employment of children in the establishments covered by these Acts but do not deal with the rehabilitation of such child labour. On the other hand, it is shocking that certain laws even permit the employment of children, such as the Apprentices Act, 1961which permits children to enter into any occupation as apprentice and the Plantation of Labour Act, 1951 which expressly permits children to work in plantations.
The picture that emerges from an examination of the various aforementioned laws is that firstly, there is no complete prohibition of all forms of child labour, secondly, no law provides rehabilitation of child labour in the manner that the child labour cannot be re-cycled and thirdly, none of the existing laws provide for any educational opportunities for the rescued children. Various studies have shown that the only way to eradicate child labour is to provide to every child good quality educational opportunities. These may include well equipped full time schools, residential schools, day boarding schools, mobile schools, transport facilities, mid-day meals, adequate number of teachers etc. depending upon the requirement of each child. The children’s homes or NGO-run welfare homes are not the substitutes. These opportunities are required at every nook and corner of the country.
The State is constitutionally obliged to actually provide the required educational opportunities to each and every child but these opportunities are nowhere visible. Result is: rampant child labour. Had it been done by the State, there would not be any child labour, what to talk of re-cycling of the child labour. The present laws dealing with child labour are totally defective. It may not be far-fetched to conclude that the phenomenon of the recycling of child labour and the continued prevalence and growth of child labour, are but the end result of all these so-called welfare legislations enacted for and in the name of the child. It is high time that the government must take steps to transform the existing laws to end all forms of child labour, including the re-cycling of child labour.
The legal status of the child labour at the time of incorporation of article 21 A in the Constitution can be seen through the provisions of the Child Labour (Prohibition and Regulation) Act, 1986 (in short, Child Labour Act, 1986). The Child Labour Act, 1986 does not completely prohibit child labour in all forms. On the other hand, it permits children to work in all occupations and processes other than the hazardous one, that too, as set forth in Part A and Part B of the Schedule to the Act. However, it is pertinent to mention that the Delhi Shops and Establishments Act, 1954 completely prohibits child labour below the age of 12 years.
The factual situation of child labour in the country is very grim and unfortunate. It is estimated that about 10 crores 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. These children are nothing but child labour. The distinction between hazardous and non-hazardous work in relation to a child is bogus. The number of child labour is increasing day-by-day in spite of government’s claim to the contrary.
The article 21 A of the Constitution guarantees every child a fundamental right to free and compulsory education up to the age of 14 years. Can a child realize this fundamental right to education, if he is simultaneously asked to continue as child labour? The child labour and right to education cannot go together. The article 21 A would become meaningless, if child labour in all forms is not completely prohibited, therefore, it is legitimate to read complete prohibition of child labour in all forms in article 21 A.
The minimum age standards for employment are linked to schooling. The ILO Minimum Age Convention, 1973 (No. 138), which built on the ten instruments, adopted before second world war, expresses this tradition by stating that the minimum age for entry into employment should not be less than the age of completion of compulsory schooling. By establishing such a link, the aim is to ensure that children’s human capital is developed to its fullest potential, benefiting children themselves, their families and communities and society as a whole by the increased contribution they can, when grown, make to economic growth and social development.
The ILO Minimum Age Convention, 1973 (NO. 138) came into force on 19.06.1976. Article 1 of the said Convention provides that each member for which this Convention is in force undertakes to 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. Paragraph 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. The paragraph 4 of Article 2 provides that notwithstanding the provisions of paragraph 3 of this Article, a Member whose economy and additional facilities are insufficiently developed may, after consultation with the organizations of employers and workers concerned, where such exist, initially specify a minimum of 14 years.
The UN Convention on the Rights of the Child was adopted by the General Assembly of the United Nations on 20 November 1989 and the Government of India acceded to this Convention on 11 December 1992. The Article 32 of the UN Convention on the Rights of the Child recognizes 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 child’s education, or to be harmful to the child’s health or physical, mental, spiritual, moral or social development, etc. The provisions of Article 32 of the said Convention also provide that the state parties shall take legislative, administrative, social and educational measures to ensure the implementation of this article. “To this end, and having regard to the relevant provisions of other international instruments, States Parties shall in particular: - (a) Provide for a minimum age or minimum ages for admissions to employment; (b) Provide for appropriate regulation of the hours and conditions of employment and (c) Provide for appropriate penalties or other sanctions to ensure the effective enforcement of the present Article”.
The age of compulsory schooling in our country is up to 14 years as envisaged in article 21 A of the Constitution of India and therefore, in terms of Articles 1 & 2 of ILO Minimum Age Convention, 1973 (No. 138) and Article 32 of UN Convention on the Rights of the Child, the minimum age for admission to employment is deemed to be 14 years and therefore, all the children up to the age of 14 years are deemed to be prohibited to work.
The Second Labour Commission of the Government of India noted, “ The only way to prevent child labour is to recognize that the rightful place of children is in school, not in the work place or in the house. So, the first step is to ensure compulsory primary education for all children. Historically and world-wide, wherever child labour has been abolished, this is how it has been done.” It further noted, “We would like to point out that whether the child is employed in enterprises and industries outside the home or at home, for wages or to help in domestic chores or family occupations, it does result in the forfeiture of opportunities for education and for formation.”
The classification among child labour for the purpose of prohibition is illegally and Unconstitutional after the insertion of article 21 A of the Constitution. The tenor of this article makes it very clear that all the children have to be in school and not at work. 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 this article.
The other fundamental and human rights of the child also cannot be protected unless the child is enrolled and retained in full time formal school. That several rights of the child including right to health, right to mid-day meal, right to participate in society, right against early child marriage, molestation and rape etc. can be best protected if the child is in the school and not at work place. In order to give effect to the letters and spirit of article 21A of the Constitution, the government must take immediate steps to amend the Child Labour Act, 1986 banning completely the child labour in all forms and providing severe penal provisions against its violators.
Jyoti Sharma and Shelly Sharma are sisters studying in the Indian School right from class I. The parents of these students are economically weak and were not in position to bear the burden of fees for education of their children. However, with the help of their maternal grandfather, these students were getting education in this fee charging public school. The maternal grandfather is a retired person and his only source of income is pension. The payment of pension was delayed for last few months, resulting in non-payment of the school fees in time for the quarter i.e., December 2005-March 2006. In December itself the mother requested the school to grant them some time to deposit the fees.
That on 31.01.2005, the students as usual went to the school at 7.30a.m. and while they were attending their classes, at about 10.30 a.m., the Headmistress Ms. Meenakshi Malhotra asked them to leave their classes and were told to go home. The mother of the students received telephone call from the school that due to non-payment of fees, the students have been removed from the school. The mother went to the school and offered fees through cheque but the school refused to accept it and the students came back home.
On 1.2.2006, these students went to the school to take unit test of Social Studies but they were not allowed to take the test and forced to sit idle in the library. The students informed their mother on telephone and the mother came to the school and offered fees in cash but the school refused to accept it. The students and the mother on reaching home found letters from the school informing them that the names of the students have been struck off.
That on 4.2.2006, the mother sent bank drafts towards fees along with a letter of request to the school and copies thereof to the Director of Education, but still the students were not allowed to attend classes and the school was adamant to not to withdraw their decision. Till 07.02.2006, not only the students and the mother did their best to convince the school to allow the students to attend classes but the other students also agitated on the issue against the school but unfortunately, the school remained adamant on their stand. In this process, the students and the mother repeatedly faced humiliation at the hands of the school authorities.
Failing in their attempts to pursue the school to take back the students, the mother on 7.2.2006 personally met the Convener of Right to Education Task Force and complained against the school. The Convener immediately sent a telegraphic notice to the school, which is reproduced as under:
The Indian School,
Joseph Broz, Tito Marg,
Striking off names of Jyoti Sharma student of class VIII B and Shelly Sharma of class VI A is illegal and unjust. A request for allowing these students to attend classes immediately. Legal notice follows.
483, Lawyers’ Chamber, Block II,
Delhi High Court, New Delhi-110003.
Mobile No. 9811101923”
On the next day, i.e. 08.02.2006, around 2.00 pm, the mother of the students received a telephone call from the school whereby she was asked to send the students to the school on 10.2.2006 (9th being holiday). On 10.2.2006, both the students went to the school and joined their classes as usual.
It is a success story.
Friday, January 4, 2008
A Right to Education Task Force team (RETF) (a unit of Social Jurist) consisting of Advocate Ashok Agarwal and Mr. Akbar Ali of NGO Chetnalaya visited MCD Primary School, morning shift, C Block, Jahangirpuri, Delhi at 8.30 AM on January 2, 2008 and observed as under:-
1. 1175 girl students belonging to underprivileged section of society are studying in the school in classes, nursery to V.
2. Electricity connection is available in the school but there is no electricity in any of the classrooms and all the students are compelled to study in total darkness. This condition is there for the last so many months. Computer room is also non-functional. None of the classrooms was having functional tube lights though electric fittings were there. Interesting thing noticed was that tube lights were functioning in the Principal’s room. Other thing noticed was that a functional electric hot case was available in the Principal’s room and the teachers were using the same for their lunch packets.
3. Students were forced to sweep their respective classrooms. There is only one daily rated full time sweeper but of no use.
4. Out of two toilet bocks, one was locked and another was very dirty. Some of the students were using this dirty toilet block whereas most of the other students were easing themselves in open.
5. Except Principal’s room, all other rooms were dirty. Many of the desks were broken. Windows were without glasses and the students were facing chilly winds.
6. There are three nursery sections with 100 students but there is no aya posted for the last three years.
7. Barring absence of 4 teachers, all other teachers were present. The Principal had gone to attend an official meeting. However, in the conditions stated above, teaching work is almost impossible.
8. The anti-social elements use to forcibly enter into the school premises and steal the school property. The school watchman had complained to the local police in writing that he was threatened by anti-social elements of the locality and sought protection but police has not done any thing so far in this regard.