Child Rights: Erosion of childhood
The government’s proposed legal measures regarding child labour will amount to a civilised society failing its children
Ghazala Jamil Delhi
Who is a ‘child’? Children are often referred to as ‘future citizens’. Although this term is factually incorrect, it points to the deficit in citizenship experienced by children in the ‘present’ because of their dependence on adults.
Common sense, backed by psychological and physiological evidence, suggests that there is a difference between an ‘adult’ and a ‘child’. Thus, the legislative actions of most modern States is characterised by an understanding that the law must not treat children in the same manner as it treats adults. At the same time, it is easily demonstrable that the line marking the difference between ‘child’ and ‘adult’ is a shifting one across cultures, history, and even laws. At a given point in time, the same young person could be treated by the law as an adult for certain actions and as a child for certain others.
In India now, a youngster who has committed a ‘heinous’ crime can be tried and punished as an adult with even the death sentence, but cannot be considered an adult for marriage, voting, or most financial transactions.
In newly-independent India, children were conceptualised as being the repository of progress for society. The dominant image of impressionable and still-unformed minds prevails in most State and non-State engagements directed at children. Although this image leaves much to be desired, in the neo-liberal era Indian society and the State seem to have taken a turn to the right, and for the worse, in viewing children also as a ‘resource’ which should be ‘harnessed’. This is in line with the overwhelming legitimacy of the ideas of retributive justice, ‘public outrage’ and ‘collective conscience’ in our public sphere debates and
Should children ‘work’?
With the changes that a society goes through, the notion of how children should spend their time also changes. In feudal and/or casteist societies, children worked with their parents to learn the skills of the occupations of their parents. After the industrial revolution, they continued to work in worse conditions in parts of the world that are now considered developed. Their labour acquired an economic dimension and they did not necessarily work only with their parents or in family occupations. It can be safely said that with increasing prosperity, children are freed from labour in general. This could be true of entire countries or even families.
In the contemporary world it is well-recognised that all desirable social changes are not a result of fate or of destiny or of spontaneously occurring phenomena in the natural world. Human beings intervene in undesirable social conditions to improve them. Governments are expected to legislate and to formulate policy to take care of their citizens.
In short, there exists a consensus in the world today that children should not have to work, that their prime occupation ought to be to acquire formal education, and that they should have ample playtime with their peers, and leisure time with adults, to help them learn social skills. States and the international community have expressed a commitment, through the United Nations Convention for Child Rights, to find and provide the necessary resources for ensuring this for all the world’s children.
The Child Labour (Prohibition and Regulation) Act (CLPRA), 1986, like so many other laws in India, has a dismal record of implementation. The prohibition stipulated in the Act applied only to children below 14 years of age and only to occupations considered hazardous. This means that a person in the age group of 14-18 years, who is considered a ‘child’ in the definition provided in the Juvenile Justice Act, can work even in occupations listed as hazardous. As ‘minors’, they are considered legally incapable of giving consent, and thus cannot enter into any contracts, including contracts of employment.
Child rights advocates have been demanding, among other things, a complete prohibition of child labour below 14 years of age. This was considered necessary to bring the CLPRA in line with the Right of Children for Free and Compulsory Education Act, 2009 (RTE Act) which brought ‘children’ of age 6 to 14 years within its ambit. The Child Labour (Prohibition and Regulation) Amendment Bill, 2012 provided for a blanket ban on child labour below 14 years of age and a prohibition on child labour of 14-18 years of age in hazardous occupations. In 2013, a standing committee headed by DS Chauhan recommended that wages, hours of work and dispute settlement mechanisms for working children in the age group of 14-18 be included in the Bill. Importantly, it also recommended that the explicit suggestion to allow children to help their parents be deleted. Both these recommendations were then incorporated in the Bill.
Citing the ‘social fabric and socioeconomic conditions’ of our society, the present BJP government, through a press note, has paved the way to make child labour legal if the child works ‘in his or her family or family enterprise after school or on vacation, provided the work is not hazardous’.
Various commentators have criticised these changes to the 2012 Bill by pointing out that this amounts to perpetuation of caste-based occupations and also that it cannot be assumed that children’s employment in home-based enterprises and outsourced industrial activities is not exploitative and oppressive.
From some sections of civil society there have also been welcoming voices that hold that there is nothing wrong in children working with their parents and learning from them. These voices were joined by Nobel Laureate Kailash Satyarthi, who maintains that the proposed change in the Bill is fine as long as the government clearly defines ‘family’ and employment relationships. He said, “Children help their family and they also learn skills from their parents. Our condition is simple and clear that this ‘help’, and not an earning, must not be at the cost of the child’s education, health and free time. Children everywhere in the world— even from rich families—visit their parents’ workplace in their free time and learn skills.”
Many academics say that teaching has been the profession in their families for generations. But can they legally take the help of their children in grading their students? No. Doctor parents cannot engage their children in diagnosing diseases, writing prescriptions or operating on patients. Lawyer parents cannot get children to draft petitions or make appearances in court. But a labourer can ‘teach’ her child to balance head-loads. An unemployed or underemployed weaver’s son can learn to weave. Children can help their mothers strip cables for extracting metal and can roll bidis at home. A farm worker can teach her child to bend over to plant paddy or dig ditches. A rag-picker can teach his child which piece of scrap on the road is valuable.
This is what we will see if we truthfully answer the question: “In contemporary India, what kind of work can poor children do in family enterprises with their parents?” The ‘prevailing socio-economic’ situation in India is that a vast proportion of India’s masses live in extreme poverty and the labouring class is increasingly pauperised despite toiling hard.
The prevalence of hunger or malnutrition in official data indicated by inadequate calorie intake of less than 2,400 and 2,100 kcal per person per day in rural and urban areas, respectively, is astounding. In urban India, 58 per cent of the population was malnourished in 1993-94. In 2009-10 the percentage of malnourished people rose to 70 per cent. During the same period, in rural areas, the increase was from 71 per cent to an astounding 90 per cent (NSS 66th round). This is the picture even as the official data on poverty shows a reduction, achieved more by manipulation of the poverty line itself than by welfare measures for the poor. Even when this improvement is taken at face value, poverty is being measured by per capita expenditure. In other words, Indians may be spending more but are not necessarily eating better because they have to spend on other essentials such as health, housing, education and other contingencies. As a result, 42.5 per cent of our children are underweight, 15.8 per cent are severely underweight, 48 per cent are stunted and 19.8 per cent of all our children are wasting.
The poorest fifth of India’s population has seen a decrease of 25 per cent in its land ownership between the 1990s and the 2000s. This creates armies of unorganised sector workers – seasonal migrants, who spend their productive lifetimes constantly on the move. What kind of work are their children being ‘allowed’ to engage in?
The idyllic picture of a family of limited means (but modest needs) becoming self-sufficient when children learn the ‘value of work’ from their parents in family crafts is far from the truth, and when educated, upper middle class people indulge in this kind of day-dreaming on social media they inflict grave insult over injury to the poor child citizens of the country.
Epic ‘fails’ of the Indian State and civil society
The Right to Education Act is poised for a spectacularly disastrous failure of implementation. We are yet to establish adequate teacher training institutes, leave alone having enough teachers and schools to ensure free and compulsory education to all children in the 6-14 age bracket. Opponents of caste-based reservations in higher education and public sector jobs often suggest equal opportunity for better education at primary level for all. How is it equal that poor children are faced with a lack of political will to implement the RTE Act and are being ordained to labour along with their labouring parents? For short-term support for the subsistence of their families, poor children from marginalised sections are being primed to never acquire the ability to break free of the poverty trap.
Research in India and other developing countries such as Bangladesh shows that food subsidies to children and their families help keep children in school to the extent that schooling replaces child labour. Most of the states in India are dragging their feet and are abysmally behind schedule in their implementation of the National Food Security Act, 2013. Not resting at this ‘fail’, the present government has gone ahead and slashed spending on programmes that ensured the nutritional and food security of children and women. While the allocation for Integrated Child Development Scheme was reduced by 54.19 per cent, the entire budget for the Ministry of Women and Child Welfare was reduced by 55 per cent. The mid-day meal scheme showed great promise through increased enrolment and retention in school. Its budget for 2015-16 has been slashed by the government by over 30 per cent compared to the previous year’s allocation.
In this discussion, it needs to be pointed out that many NGOs suffer from an overly simplistic and limited view of children experiencing extreme poverty. The forerunners of anti-child labour organisations are guilty of routinised (sometimes even traumatising) ‘rescue’ of child labourers from confined sweat shops or streets followed by ‘restitution’ of children to their families. This is inevitably followed by the ‘rescued’ children finding their way back to similar or more exploitative conditions. This hopelessly incompetent ‘restitution’ of poor children is designed to fail because in a majority of cases their families are without work, destitute,
Child labour in India has to be seen along with unemployment, distress migration, and weak implementation of adult wage protection and employment guarantee regimes. The continued legal availability of child labour is important to maintain a critical mass of surplus workers in the labour market. In the end, some Indian parents will just not have any work they can use the ‘help’ of their children in. Instead of taking steps to secure employment and sustenance for all citizens, this romantic notion of children helping their parents is just a cruel empty gesture by the government. And the inability of the most celebrated advocates of child rights to read this gesture for what it is, is a great tragedy.
As if to add a fresh injury to an old, festering wound, children who are accused of committing ‘heinous’ crimes are going to be tried and punished as adults. Already, the functioning of our adult penal system is in danger of being reduced to a mockery of the real thing. Most prosecutions and acquittals in the news look like stories of status crimes —where it is not the unlawful act but the status and identity of the person committing the act which determines the course of the case. It is not as if the children of the dominant sections of society never come in conflict with the law, they seem to be able to give the slip to the juvenile justice system, which is chock-full of children coming from marginalised sections. The blurring of the distinction between the juvenile justice system and adult penal procedures will allow for a further erosion of childhood for the younger members of the marginalised, exploited and poor sections of Indian society.
The erosion of child rights also owes much to the increasing currency of, on the one hand, the popular liberal and corporate-capitalist ‘feminism’ (which emphasises individual self-reliance but undervalues social justice, empathy and caregiving) and, on the other, the right-wing, carceral ‘feminism’ that is rooted in a communal and casteist outlook. Both these ‘feminisms’ are essentially anti-feminist and have undercut the important role feminists have hitherto played in articulating and advocating child rights.
Laws do need to recognise the social fabric of the society and prevailing socio-economic conditions. But when the prevailing conditions are unjust, law-making needs to correct the unjust conditions, not legalise them. The State cannot transfer all of its responsibility towards child citizens onto their families and parents, who themselves have hardly any social security to speak of.
Laws are not formulated in a political vacuum. Many laws that regulate labour conditions are products of longstanding labour movements in India that were met half-way by the legislators. Other considerations arise out of India being a signatory to international covenants. Many others derive from what the industrial and corporate houses or their conglomerations lobby for. No child labour unions are known to have existed in India or, indeed, anywhere in the world. For cognitive and physical development reasons that children cannot advocate themselves, laws that have a bearing on children and childhood—and not just child labour —are often formulated based on considerations other than what might be best for children.
The present Union government is bringing in legal measures that amount to a civilised society failing its children. These should be read with other ‘fails’ in order to comprehensively see the full story of the childhood of the poor and marginalised in India. Child rights advocates might do well to reflect on the political economy of the extraneous considerations that might have prompted the introduction of these measures or influenced the failures of implementation. In a democracy, these amount to a legal siege of childhood.
The author is indebted to Dr Mukul Dube for assistance with this article