HAQ's response on India's submission to the UN, for the Universal Periodic Review of Human Rights
This is in response to responses received from item 7 and 9 of the UPR made by the Government of India:
The Government of India (GoI), in its responses to the recommendations during the UPR process, has stated that “present socio-economic conditions in India do not allow prescription of minimum age for admission to each and every area of employment.”
It has claimed that it “has taken wide range of measures including prescribing minimum age of 14 years for employment in hazardous occupations, as domestic helps, at eateries as well as in certain other areas.”
It states its commitment to “progressively implement the provisions of Article 32 of the UNCRC and mentions the National Commission for Protection of Child Rights as having been set up for “speedy trial of offences against children or of violation of child’s rights”.
While the response of the GOI does not surprise us, it nonetheless does cause distress.
When the law on child labour was passed in 1986, it took the plea that India was not in a position to abolish all forms of child labour at that stage given its socio-economic status and hence passed a law prohibiting some occupations and processes, while regulating the employment in others. However since then India has moved towards becoming an economic ‘super power’ and the country with the tenth highest GDP in the world. It has successfully sent a space- ship on to the moon and hosted the Commonwealth Games. For India to now take the plea that its “present socio economic conditions” do not allow it to review its reservation on Article 32 clearly reflects a lack of political will and commitment to the realization of child rights.
While India remains a nation with the highest number of child labourers in the world, getting accurate figures on the actual number of child labourers in the country still remains a challenge as there still is no clear definition of who is a child labourer.
It is important to state here that the Child Labour (Prohibition and Regulation) Act, 1986 which allows for children to work in non-hazardous occupations stands in direct contradiction to the Right to Free and Compulsory Education guaranteed by Article 21 A of the Constitution and the Right to Education Act, 2009. Indeed the existence of the present child labour law means that some children will continue to be denied their fundamental right to education and this has been sanctioned by the law of the land. This is unconstitutional. In fact, the continuation of child labour in any form is in negation of the fundamental right guaranteed under Article 21-A of the Constitution. It is submitted that the failure of the existing laws on child labour to completely prohibit all forms of child labour is causing continuous violation of all fundamental and human rights of children as guaranteed under Articles 14, 21, 21-A, 23, 24, 38, 39(e), 39(f), 41, 45 and 51-A (h), 51-A (j), 51-A (k) of the Constitution.
Further, while India claims it “fully recognizes that the child has to be protected from exploitation of all forms including economic exploitation”, it still doesn’t even recognise child labour as a cognisable offence under that very Child Labour Act.
The GOI has mentioned the inclusion of new occupations namely domestic work, in eateries and in entertainment in the schedule of hazardous occupations (10 October 2010). It must be pointed out that a recent National Social Audit on the Ban of Employment of children in domestic sector, Dhabas and eateries has shown that in the third year of the ban, “there is no concrete mapping and identification of child labourers in these sectors, very poor rate of success in the rehabilitation of the rescued children and in the prosecution of the accused employers…Experiences and observations from the different fronts show still a high number of child labourers in these visible sectors, poor functioning of the child welfare committees or Childline in different states in rehabilitating the rescued children and reluctant nature of labour departments and police in primary enforcement of laws.”
The GOI’s statement regarding the setting up of National Commission for Protection of Child Rights (NCPCR) as having been set up for “speedy trial of offences against children or of violation of child’s rights is incorrect as the NCPCR is a Commission and not a Court. It does not have the power to conduct speedy trials nor give judgments and impose penalties. It can only undertake inquiry, summon, and recommend. For any further trail the Commission has to forward the case to a Magistrate, approach the High Court or the Supreme Court or recommend to the concerned Government or authority for grant of interim relief to the victims or members of his/her family. (Section 14 and 15 of the National Commissions for Protection of Child Rights Act 2005).
‘Modern’ India that houses two of the ten richest persons in the world, is a global super power, hosts international games, provides aid to other countries. That it should take the plea of “socio –economic conditions” to deny realization of rights of all children and condone the existence of one of the worst forms of exploitation of children, burdening them with adult economic responsibilities, is a clear reflection of abdication of state responsibility. It should indeed go beyond the Article 32 and move towards the banning of all forms of child labour and the realization of the right to free and compulsory education of equal quality for all its young citizens.
While poverty is both a consequence and a cause of child labour, it is not just about having to work to make ends meet for the family. It is about limiting access for these children to resources and the ability to participate fully in the nation’s political, economic, social and cultural life. It is about the denial of their basic rights. Poverty might push a child into labour but an unskilled life with no education traps them as well as further generations into a cycle of continuing poverty and illiteracy.
India can state that it “fully subscribe to the objectives of the Convention of the Rights of the Child as well as the ILO conventions No. 138 and 182 (which India is yet to ratify), but, as evident from the vast numbers of child labourers all over the country, it needs to invest in child labour elimination programs, better child tracking systems, inter-departmental coordination and convergence of services, legislative provisions to regulate placement agencies and so forth. Of course, no legislation can be implemented without political will. Despite having taken a “wide range of measures”, the Government of India is far from reaching its Millennium goals and effectively investing into its children – citizens today and this nation’s tomorrow.