labour - The legal challenge
(The following is the Background paper of a Workshop on Child Labour held by the A. P. State Judicial Academy on April 4,k 1998. -General Secretary)
Sivakasi, Ferozabad, Moradabad and several other places and towns in this country have become notorious for engaging children for manufacture of fire works and crackers which light our Diwalies; Children are employed to make carpets which earns us our foreign exchange. Look at the range of industries in which they are engaged. Bidi industry; glass industry; zari and embroidery; gem and diamond cutting; construction; ragpicking; pottery; stone and slate quarries; and they are even engaged as sex workers. Both male and female children are subjected to sex abuse. This despite the grandiloquent declarations contained in the United Nations basic documents and declarations. Every constitution declares human dignity as a non negotiable objective. The Era of Human Rights was ushered in after the termination of the second world war and therefore it may not be necessary to go into the history of child labour prior to the Human Rights Declaration. It is true that the question of child labour has received the attention of colonial governments. Whatever altruist measures were introduced were to render exploitation more effective and efficient and to make colonialism more acceptable to the native population. Otherwise colonialism more acceptable to the native population. Otherwise colonialism and the nascent capitalist countries of the west were impervious to and untouched by any humanitarian principles.
The Universal declaration will be completing fifty years in December this year and it is necessary to review the progress of human rights in these fifty years. The new aspirations of India on the threshold of independence were written into the Fundamental Rights chapter and the chapter on Directive Principles of State Policy primarily apart from the unequivocal declaration in the Preamble to the Constitution. Later some were added in the form of Fundamental Duties. The Constitution addressed itself to the child labour issue but the approach was not radical. The vibrance one finds in the preamble did not transmit itself to the Articles which are enforceable. Article 24 prohibited employment of children below the age of fourteen in mines and shall not be engaged in other hazardous employment. Thus there was no ban on employing children. Art. 45 directed the state to provide free and compulsory primary education for all children until they completed the age of fourteen years. This task the state was to undertake within a period of ten years from the commencement of the Constitution. The constitution has completed 48 years and we have not yet made a beginning.
The problem of child labour is not peculiar in India. Employment of children is a practice obtaining in almost all the developing countries. The main and perhaps the only reason for this practice is the presence of iniquitous and the exploitative order in these countries, where no measures are taken to implement distributive justice. With structural readjustment, liberalisation of economies to enable the functioning of a free market economy we have regressed into the economic thought of early stages of industrial revolution where the ruling principle was if we take care of production distribution will take care of itself. With this kind of economic philosophy that has established its hegemony over the world there is any chance of improvement in the conditions of labour let alone child labour.
Without disturbing the status quo efforts have been on to flight child labour. The ILO identified child labour for its focus for the year 1992-93. In the first phase for action programme Brazil, India, Indonesia, Kenya, Thailand and Turkey. For the second phase Bangladesh, Cameroon, Egypt, Pakistan, the Philippines the United Republic of Tanzania. The ILO formulated the International Programme on the Elimination of Child Labour. The principal aim of IPEC was to mobilise governments, workers and employers organisations, NGOs, educators parents and children for action against child labour.
Whether at the domestic or international level all these efforts have had no effect. When the malady is ubiquitous statistics to prove the presence of the malady may not be necessary. Even as early as 1959 the United Nation's General Assembly passed a Resolution inter alia declaring that the basic right of every child is protection against labour that stunts mental or physical growth, and against policies and practices that limits education and deprives children of the right to comradeship, of play and joy. This of course was pious resolution. It was only on 20 November 1989 that the UN General Assembly adopted the Convention on the Rights of Child. This convention was ratified by India on December 10, 1992 and India must have made a declaration that there are statutes governing the field covered by Art. 32 of the convention. It is true that the source of progress in law is closely linked to actual progress in law is closely linked to actual progress in social relations and social situation. It seems to be equally true that law simulates progress very often to recognise a current social evil the preservation of status quo brings about the perpetuates and bring about a legislative measure but only to contain and regulate the current social evil. All transformatory legislation, all legislation declaring rights of the working class and the recognition of human rights exist side by side with the legal system designed principally to preserve the status quo, and the preservation of status quo and the existing social order act as limitations on the play of these progressive laws. The unarticulated major limitation on the constitution and the laws is the preservation of the status quo. There is no dearth of information on human rights all over the world. But yet these violations, whether it be child rights, women's rights or civil and political rights occur on a day to day basis in almost all countries, despite laws covenants and conventions.
This problem is engaging the attention of persons and organisations working for realising these rights for the people. In a discussion paper on Human Rights Violations in an International workshop, Oxford 1995, this problem was well focussed: "Over the past twenty five years, the volume of these reports about fundamental civil and political rights has increased enormously. Large numbers of reports are now issued and circulated every year both by international human rights organisations working to secure human rights world wide and domestic organisations world wide and by domestic organisations working to secure human rights world wide and domestic organisations world wide and by domestic organisations working to safeguard human rights in their own societies. Considerable time resources and energy are devoted to this enterprise. Information is painstakingly collected and checked, the appropriate legal prohibitions cited, and the report is edited and packaged. Many people devote their lives and even risk their personal safety to produce all this information. But what happens next? Who sees all these reports? Do they end up only on the library shelves of fellow human rights workers, the files of bureaucrats and the rubbish bins of target governments - or do they reach wider audiences of influential elites, the mass media and the general public? And even if they reach these wider targets, what effect does the information actually have - - a sense of outrage which galvanises social action or a tired yawn of recognition at seeing more of the same old stuff?"
The same response holds good for Child Rights also. One can only hazard an answer without in any manner asserting or even assuming it is the right one. I do not think it is possible to eliminate child labour alone. Nor is it possible to eliminate bonded labour alone unless there is a social transformation where the status quo is replaced by a more egalitarian society violation of these rights will continue. A struggle against these violations have to be waged incess in the society and in other institutions, the primary among them being courts. It is possible to work these institutions insurgently provided the persons who man these institutions are committed to human values and are willing to work for bringing about a human society. As it stands today courts as a collective is not equipped to perform this task. That is why we find many of these judgments platitudinous.