LEGAL PERSPECTIVES OF CHILD LABOUR ISSUES

By Adv. Ashok Agarwal

Introductory note:

Every child has a fundamental and human right to free and compulsory elementary education as guaranteed under the Constitution of India. Compulsory education and child labour cannot go together and, therefore, the child labour in all its forms is unconstitutional. It is unfortunate that the Govt. of India has not yet brought the existing Child Labour (Prohibition & Regulation) Act, 1986 in tune with Article 21 (Right to Life with dignity) and Article 21-A (Right to free and compulsory education) of the Constitution of India.

Right to free and compulsory education for all children presupposes non-existence of child labour. However, it is not happening because the State is not sensitive to the education rights of the children. On the other hand, it can be said that the State is one of the biggest promoters of the child labour as it has failed to retain children in the school. High dropout rate of the students in the schools is mainly due the sub-standard education in the Govt. run schools. The State has failed to make their schools attractive and child-friendly so as not only to retain the students in school but also ensure that children who are out of school come within the school system.

There is all round violation of children’s rights whether it pertains to education or health or safety of the child etc. School is the best place for child for securing, if not all, but many of his rights. Therefore, concentration on education rights of the child is very important. Notwithstanding this, the child in any circumstance can not put to work. The childhood of every child has to be protected.

Case Studies:

Social Jurist, a civil rights group consisting of lawyers and social activists, since 1997, is very actively taking up the causes of the children relating to the education and child labour. Some of the case studies are briefly given as under:-

1. No Provision of Progress Report Cards for MCD students:
One million children studying in the MCD schools had never seen their Progress Report Cards till the recent past. Based on the information having been collected by a Social Jurist Volunteer, a PIL was filed in Delhi High Court last year highlighting the above facts and the High Court was pleased to direct the MCD to provide Progress Report Cards to all the students.

2. Government Department occupy School Premises: High Court Orders to vacate
Since 1992, the Health Department of the Govt. had encroached upon the Delhi Govt. Girls School at Malkaganj, Delhi depriving hundreds of students of their class rooms, hall and playgrounds. A PIL was filed in Delhi High Court highlighting this fact and High Court directed the Govt. to return the property to the students. Within 3 months of the filing of the PIL, the entire premises occupied by the Health Department was vacated and handed over to the school.

3. Free admission up to 25% in Private Schools of Economically Weaker Sections (EWS) students
During the past 3 decades, as many as 361 Unaided Recognized Private Schools in Delhi had been allotted public land by DDA and LNDO on concessional rates with the condition that the schools shall provide admission to the extent of 25% to the children of EWS. This social obligation has never been adhered to by any of these schools.

In 2002 a PIL was filed in Delhi High Court on which High Court passed an order on 20 January 2004 directing the Govt. to identify the schools which are not adhering to the conditions of freeship and send their names to the land owning agencies for action in terms of conditions of land allotment.

After this order of the High Court, the schools started admitting children from EWS and till date approximately 15 to 20 thousand such students have been admitted. The High Court is also monitoring the implementation of its orders.

4. No more interview of children and parents for admission in nursery class
In almost all fee charging private schools in Delhi, a pernicious practice of subjecting 3+ and 4+ age children and their parents to test and interview for admission in nursery class was prevalent since long. This practice was in violation of fundamental and human rights of the children and amounts to commercialization of education. A petition was filed in Delhi High Court and the High Court banned the interview of the parents as well as of the children for the admission of the child in the nursery class.

The High Court also constituted a committee headed by CBSE Chairman Mr. Ashok Ganguly to examine and recommend an common admission criteria based on 3 parameters:
i) No interview of parents and children
ii) Total transparency
iii) Minimizing school discretion

The Ganguly committee submitted their reports in 2006 recommending 100 points formula for admission in Nursery class. High Court directed all the schools to follow the said criteria on experimental basis for 1 year i.e.2007-2008. The High Court has again asked the Ganguly Committee to fine tune the existing formula/ criteria keeping in view the experience gained during the last one year. The Ganguly Committee has again submitted its revised recommendations which are under the consideration of the High Court.

5. Pre-Primary Education regulated and systematized
The private schools in Delhi were not following any uniform system of pre-primary education. Some schools were admitting children in Nursery class at the age of 3years, some at the age of 4 years and some at the age of 5 years. Some schools were running 2 years of pre-primary and some were even running 3 years of pre-primary. The children in pre-primary level were given formal education.

A PIL was filed highlighting the issues. The High Court constituted a committee headed by the CBSE Chairman Mr. Ashok Ganguly to examine issues relating to the pre-primary education and submit its recommendations. The Ganguly Committee submitted its recommendations to the High Court. The High Court directed the Delhi Govt. to examine these recommendations and take decision there on. The Govt. accepted all the recommendations of the Ganguly Committee and there upon the High Court directed the Government to notify the same.

The salient features of the recommendations were:-
i) There will only be one year pre-primary.
ii) The minimum age for entry in pre-primary will be 4 year as on 1st April.
iii) The students in pre-primary class will be taught through play-way method and no formal education will be given to them.
iv) The Govt. should introduce 1 year pre-primary classes in all its schools.

6. Admission to 7 Blind Students in Kendriya Vidyalaya Sangathan (KVS)
KVS denied admission to 7 blind students on the ground that none of the students has a birth certificate from municipality which is necessary for admission as per their policy of admission.

A petition was filed Delhi High Court saying that non availability of Birth Certificate cannot be a valid ground for denial of admission in school. Interestingly, one of these students was a destitute and being a destitute, it cannot be expected from her to produce her own birth certificate. The High Court asked KVS to consider cases of these children without insisting on production of birth certificate. There upon all these children were given admission in KVS.

7. Claim for Basic Infrastructure in Govt. and MCD schools
In 1997, first petition was filed in Delhi High Court highlighting absence of basic infrastructure like, toilet blocks, play ground, electricity, fans, blackboard, pakka building, drinking water, etc. in the Govt. and MCD run schools. The High Court has since then passed several orders from time to time and still the High Court is monitoring the implementation of its orders. As a result of this, a lot of infrastructural improvement has taken place both in Govt. and MCD schools.

8. “There should be zero Teachers’ vacancy when an academic year starts”: Delhi High Court
Several petitions have been filed from time to time highlighting shortage of teachers in Govt. and MCD schools. Due to High Court’s intervention, several thousand teachers on regular basis have been appointed. The High Court goes to the extent of saying that there should be zero teachers’ vacancy when an academic year starts. Since the Govt. has failed to achieve it, they are facing a contempt petition. The High Court is still monitoring the implementations of its Orders.

9. 17 Lawyers to act as Education Volunteers
The High Court in a recent Order has appointed as many as 17 lawyers to act as education volunteers. They have been authorized to ascertain standard of education and status of basic infrastructure. There are 3000 Govt. and MCD run schools catering around 20 Lakhs children belonging to weaker sections of society. The standard of education in most of these schools is abysmally low.

10. Admission to an overage disabled girl
A Muslim girl child named, Sholay was 60% paralytic. She was the daughter of a rag picker and was living in a Jhuggi (hut) at Jahangirpuri, Delhi. She had passed class IV from a private recognized school at Ghaziabad, UP with 83 % marks. She was denied admission in class V by all the MCD run schools of the Jahangirpuri area on the ground that she was overage. Her age according to school certificate was 14 years.

A petition was filed in the High Court challenging denial of admission to Sholay submitting that such denial is in violation of right to education, The High Court asked the MCD to explain as to why Sholay was denied admission. Next day, all the leading newspapera and the electronic media highlighted the issue. Sholay was given admission on the subsequent day. Several other students, who were denied admission, were also given admission. The common practice of refusing admission on the ground of being overage was given a go bye.

11. Admission to thousand of students in Govt. and MCD schools
It was a usual practice to deny admission to thousands of students every year both by Delhi Government and MCD schools on one pretext or another including that of the expiry of last date of admission.

A petition was filed in Delhi High Court highlighting these facts. The High Court’s intervention has resulted in admission of thousands of students in these schools.

12. Admission of destitute/ street children allowed without a Date of Birth Proof
The Rules under Delhi School Education Act, 1973 required affidavit of parents about the date of birth of the child, in case, the birth certificate of the child was not available for admission in school. The destitute/ street children were since unable to submit birth certificate as well as affidavit of parents about the date of birth and, therefore, they were always denied admission in the school.

The constitutional validity of these rules was challenged in a PIL on the ground that these rules violate right to education in case of destitute/ Street Children. The High Court directed the Govt. to come-up with a solution. The Govt. issued circular with one month of filing the PIL purposing to amend the rules thereby enabling destitute/ street children to get admission in the school without furnishing birth certificate or affidavit.

13. Schools not to deny re-admission to class 10th and 12th failed student
In the race of projecting improved annual school results, both the Govt. and private schools were refusing re-admission to class 10th and 12th class failed students. A petition was filed in Delhi High Court challenging such practice on the ground that the provisions of the Delhi School Education Act, 1973 clearly mandate that no school shall refuse admission to the students who appeared, but failed, in public examination. Due to courts intervention, this practice to a larger extent has stopped.

14. Arbitrary fee Hike
All most all fee charging private schools in Delhi arbitrarily hiked fee and other charges ranging from 40 percent to 400 percent in the academic year 1997-98 in the name of fifth pay commission recommendations. It shocked the middle class parents. The parents in large number organized themselves and started publicly protesting against arbitrary fee hike. Three months long agitation of the parents failed to move the government. Thereafter, a PIL was filed in the Delhi High Court submitting that the failed to check the menace of commercialization in school education.

The High Court decided the PIL on 30.10.1998 holding that the government has not only powers but also duty to check commercialization in school education. The High Court issued several directions. The schools filed appeal in the Supreme Court against the High Court judgment. The Supreme Court dismissed the appeal on 27.04.2004. The Supreme Court while dismissing the appeal also directed the government to ensure implementation of the freeship clause for the admission of the students belonging to the weaker sections as contained in the land allotment letters of these fee charging schools.

15. School for relocated jhuggi dwellers
In 1999-2000, more than 30000 huts at various places of Delhi were demolished by the government and the slum dwellers (nearly one lakh) living therein were relocated at about 10 different places which were close to city border and at a distance of 26 km to 48 km from the original sites. The relocations were done without ensuring availability of minimum basic facilities of drinking water, school for the children, electricity, road, dispensary, transportation etc. Thousands of the students who were earlier going to the schools were now without school.

PIL was filed in Delhi High Court highlighting these issues with the emphasis on school. The High Court constituted a lawyers committee to visit the relocated sites to ascertain the status of the school and of other basic facilities. The High Court summoned Delhi Transport Corporation Chairman in the Court and directed him to make buses available to the students at the relocated site so to enable the students to continue to attend their old school. The High Court also constituted a High Power Committee consisting of the heads of all the public authorities including Mr. Ashok Agarwal, Advocate under the chairmanship of the Secretary, Ministry of Urban Development, Govt. of India to ensure all basic amenities at the relocated sites as early as possible.

The High Court intervention not only resulted in speedy availability of schools but also other basic facilities at the relocated sites.

16. Child labour
Several PILs have been filed in Delhi High Court and one in Supreme Court highlighting the issues relating to the child labour. In a PIL filed before the Supreme Court declaration has been sought that child labour in all its forms is unconstitutional. Before the High Court a PIL was filed about three years back highlighting that inspite of prohibition w.e.f. 10.05.2001 of child labour in the process of rag picking, the number of child labour involved in the rag picking is increasing. Another PIL was filed in Delhi High Court highlighting that in the absence of proper rehabilitation measures, the rescued children are just recycled as child labour. The High Court by a recent order constituted a committee headed by the Secretary, Labour, Government of India to urgently frame regulations on issue of rehabilitation of the rescued children and submit the same to the Court.


Suggestion:

NCPCR under the provisions of the Commissions for the Protection of Child Rights Act, 2005 is empowered to file petitions in the Supreme Court and the High Courts under Articles 32 and 226 of the Constitution of India seeking directions for the enforcement of the child rights. The NCPCR should invariable invoke these provisions. In the present situation where the governments have totally failed to protect the child rights, the Courts’ intervention is most essential.

(Presented on 6th Nov. 2007 in the media workshop on child labour and education at Hyderabad, India)