IASbaba’s Daily Current Affairs – 10th August, 2016
TOPIC: General Studies 2
Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and Bodies constituted for the protection and betterment of these vulnerable sections
Social Issue – Child labour and related issues
A law that allows child labour
Why in news?
Child Labour (Prohibition and Regulation) Amendment Act, 2016, passed in July 2016 in Parliament
At first instance, it seems progressive as it prohibits
“the engagement of children in all occupations and of adolescents in hazardous occupations and processes”
Adolescents= under 18 years
Children= under 14 years
Punishment= fine and jail term to those who employ or permit work to adolescent.
The amendment of Child Labour (Prohibition and Regulation) Act, 1986 is done to increase the ambit of anti child labour laws and stricter punishment for violators.
However, a closer look brought forward certain flaws in the proposed amendment
Here lies the problems
Reduction in hazardous occupation list
From list of 83, it now only includes mining, explosives, and occupations mentioned in the Factory Act
It means, children and adolescents can be employed in
chemical mixing units
battery recycling units
brick kilns and more
Section 4 of the Act can remove the ones already existing in hazardous list. This will not require Parliament’s approval but government’s discretion will suffice.
Allowing Child Labour in family
Section 3 allows child labour in
“family or family enterprises”
As “an artist in an audio-visual entertainment industry”
In India, most of child labour is caste based. Thus, poor families are trapped in intergenerational debt bondage and child labourers continues to exist
The clause 5 in section 3 doesnot define the number of work hours.
Simple states, may work after school hours or during vacation
It means that children who belong to poor family, when come back from school, have to help their parents in their work so as to makes end meet. This is indirect child labour
History of anti-child labour arrangements
Article 24 of Constitution= prohibits employment of children below the age of 14 in factories, mines, and other hazardous employment.
Article 21A and 45 of Constitution= promise to provide free and compulsory education to all children between the ages of 6 and 14.
Right of Children to Free and Compulsory Education Act (RTE), 2009
However, the present amendments in child labour prohibition law makes RTE implementation practically difficult
The freedom to work in family or entertainment clause puts burden on low caste families to make children dropout from school and work with them.
As they will have to pay fine if they employ children, they will lie about school attendance and will unlawfully employ them
Child Labour (Prohibition and Regulation) Act, 1986
Prohibited employment of children below the age of 14 in hazardous occupations identified in a list by the law (83 areas)
National Policy on Child Labour, 1987
Combined: strict enforcement of laws on child labour with development programmes
To: address the root causes of child labour like caste and poverty
Focussed on: rehabilitation of children working in hazardous occupations
Fund: Central government provided a Rs.6 billion
Alarming: Education (28%) and women and child development (50%) budget has gone under scissors in last two years. This has led to closing of 42,000 schools.
Education for All and Mahila Samakhya programmes funds have been downsized
This has led to reports of increased trafficking of tribal and minority girls from Odisha and Jharkhand
Beti Bachao, Beto Padho funds are reportedly being misused.
The money flow comes from the assets and other finances seized from convicted people and organisations
Reversing the gains
The amendments to 1986 anti-child labour law is reversing the gains
In conflict with the Juvenile Justice (Care and Protection) of Children Act of 2000
It provides for punishment for employers of a child in a hazardous occupation
Contradict International Labour Organisation’s (ILO) Minimum Age Convention
Contradicts UNICEF’s Convention on the Rights of the Child
a child is involved in child labour if he or she is between 5 and 11 years, does at least one hour of economic activity, or at least 28 hours of domestic work in a week
a child is involved in child labour if he or she is aged between 12 and 14, does 14 hours of economic activity or at least 42 hours of economic activity and domestic work per week.
In name of maintaining tradition
The Act is a blow on India’s poor.
2011 census: of all the child labourers, 80% are Dalits and 20% are from backward class
UNICEF: there are 33 million child labourers
If the intention is to preserve the Indian art and craft, the reforms and investment in education should do it.
Budgets in education and women and child development should be increased
Mid-day meals should be reinstated
Sarva Siksha Abhiyan should provide hostel facilities for homeless children
Artisans to be hired as teachers to pass traditional knowledge and skills to next generation
Taking progressive steps
Ministry of Labour and Employment took a three prong approach
Set up a legal framework for prohibition and regulation of child labour
Use various development programmes to address the needs of working children
Set up the National Child Labour Project (NCLP)
Child labour Prohibition laws needs to be holistically developed so that it provides the poor an opportunity for their children to get educated, skilled and gain employment, thereby stopping the cycle of intergenerational poverty.
Connecting the dots:
“If a country doesn’t take care of its children today, its future is doomed”. Critically analyse the provisions of anti-child labour arrangements in India.
Functions and responsibilities of the Union and the States, issues and challenges pertaining to the federal structure, devolution of powers and finances up to local levels and challenges therein.
Separation of powers between various organs dispute redressal mechanisms and institutions.
Article 356: When Centre targets state
The recent developments in Uttarakhand and Arunachal Pradesh have turned the spotlight on the office of the governor.
Briefly stated, Article 356read with Article 357 of the Constitution, empowers the president to impose president’s rule and to assume to himself both the executive and legislative powers of the state government.
However, before he does so, he has to satisfy himself, on the basis of a report of the governor or otherwise, that, “a situation has arisen in which the government of the state cannot be carried on in accordance with the provisions of the Constitution”.
Article 356 is inspired by sections 93 of the Government of India Act, 1935, which provided that if a Governor of a province was satisfied that a situation had arisen in which the government of the province cannot be carried on in accordance with the provisions of the said Act, he could assume to himself all or any of the powers of the government and discharge those functions in his discretion. The Governor, however, could not encroach upon the powers of the high court.
This background has imbued this article with a whiff of a ‘controlled democracy’, which is what the British would have intended then.
The object of these two provisions (Article 356 and 357) is laudable, as in most cases, the article has been invoked with validity, for a desired purpose. However, there have also been cases where it has been abused to serve the interests of the party ruling at the Centre.
The Article has almost always been used to dismiss state governments where the party in power is not the same as that ruling at the Centre.
Although R. Ambedkar speaking in the Constitution Assembly had hoped the power given under the article would rarely be used and it would remain a dead letter, the record shows till May 2016 it has been used on no less than 115 occasions.
Power under Article 356 is not absolute
The power under Article 356 is not absolute and can be reviewed by the court on grounds that:
the proclamation has been made upon a consideration which is wholly extraneous or irrelevant to the purpose for which the power under the article has been conferred;
the exercise of power under the article has been malafide.
In 1989, after the Centre dismissed the SR Bommai government in Karnataka, SC had said the validity of a proclamation for President’s rule can be subjected to judicial review.
In S.R. Bommai, the following propositions were laid down by the Supreme Court for the use of the article:
The presidential proclamation dissolving a state legislative assembly is subject to judicial review;
the burden lies on the Central government to prove that relevant material existed to justify the issue of the proclamation;
courts may not go into the correctness of the material;
it is not the subjective opinion of the governor, but the floor test in the assembly, which will determine the majority of the government;
if the court strikes down the proclamation, it has power to restore the dismissed state government to office; and
the state government pursuing anti-secular politics is liable to action under the article.
Centre has the responsibility to ensure that states have performed its duty
The language of Article 356 (i) is very clear. Whether it is on the basis of the governor’s report or from any other source, the president has to be satisfied that “a situation has arisen” in which “the government of the state cannot be carried on in accordance with the provisions of the Constitution”.
In other words, it is not just a law and order situation, public disturbance, a non-compliance of one or the other provision of the constitution, but a complete breakdown of the constitutional machinery of the state, objectively ascertainable, which alone can invite president’s rule.
It has also to be remembered in this connection that the preceding Article 355 casts a duty on the Union government to protect the states against internal disturbance and to ensure that the government of every state is carried on in accordance with the provisions of the constitution.
Hence, before imposing president’s rule under Article 356, on the ground that the government of the state is not being carried on in accordance with the provisions of the constitution, the Union has also the responsibility to ensure that it had performed its duty, and failed.
Ours is a federal polity, and though it can be converted into a unitary state when grave emergencies like war and external aggression take place, or there is an armed rebellion, in normal circumstances, the federating units have to be given a free hand in running their governments.
The states are not the vassals of the Central government. They are equal partners in the governance of the country.
In democracy, the desire of the people expressed through the election process has to be respected. Both the Central government as well as the state governments are elected by the same people and through the same elective process. There is therefore no reason to believe that the expression of opinion by the people in one case is more, or less, sacrosanct than in the other case.
If the federal polity is to survive, it is the duty of the Central government to allow the constituent units to run their governments without undue and uncalled for interference in their functioning.
Laying a high Governor office low
On most occasions on which president’s rule have been imposed in the state, it has been on the basis of the report made by the governor.
Function’s of the Governor:
The proper duties and functions of the governor are to protect and promote the interests of the state concerned.
As head of state, he is the father figure in the governance of the state.
He has therefore to concern himself intimately with the desires, interests and welfare of the people of the state.
Whenever there are difficulties, obstructions or hindrances experienced by the state government, he has to use his good offices with the Centre to remove them.
When necessary, he has also to give his friendly advice to the state government, and to guide it to ensure smooth, fair and just governance.
Although, he has been appointed by the Central government (by the president on the advice of the cabinet) he is not an agent of the Central government, and should not act as such.
Unfortunately, governors, with very rare exceptions, have been acting as if they are the employees of the Central government and at its behest and in the interests of the party or parties in power at the Centre. This is a negation of the federal polity and democracy.
To act as the agent of the Central government is to act as its extended arm, and to ignore and disregard the will of the people in the state is to act undemocratically and dictatorially.
This conduct of the governors has been exposed so far on many occasions including in the recent cases of Arunachal Pradesh and Uttarakhand.
The way ahead
The governors have been sending motivated, distorted and partial reports to the Central government as desired by it, with the intention of getting rid of the elected state governments.
It has therefore become necessary both in the interests of the federal polity and democracy, that the office of the governor preserves its constitutional sanctity and morality and is used by the incumbent for safeguarding the interests of the country and not those of any political party.
To ensure impartial and constitutionally correct conduct on the part of the governor therefore, it has become necessary that he is either selected by the prime minister and the leader of the opposition jointly or by a committee of Rajya Sabha members belonging to both the ruling as well the opposition party. That may effectively prevent the abuse of the power under Article 356, which is otherwise a benevolent power provided by the constitution to tide over an unusual and rare situation arising in a state.
Connecting the dots:
Recently, few states came under President’s rule. Can you identify those states. Along with citing provisions of the Constitution, discuss the reasons for which President’s rule was imposed in those states.
Critically analyse the role of the President of India in promulgating Article 356 of the Indian Constitution. In the light of frequent violations in using Article 356, do you think it should be repealed? Justify.
What are the functions of the Governor with regard to protecting and promoting the interests of the state concerned? Do you think governors are acting as if they are the employees of the Central government? Examine.