Magsaysay Award winner Shantha Sinha believes that all children out of school are laborers. The 86th Amendment to the Constitution of India - which recognizes education as a fundamental right of the child - has, therefore, breathed new life into her endeavors.

Sinha and her organization, the Mamidipudi Venkatarangaiya Foundation (MVF), have challenged the Child Labor (Prohibition and Regulation) Act
1986 in a public interest litigation. They allege that an Act that prohibits child labor in some sectors, and actually regulates it in other sectors, rationalizes the continuation of child labor. The Court, on its part, responded in February 2006 by asking all states and union territories to respond to Sinha's petition within six weeks. "Children have to be in school and there cannot be a place other than schools for them," the Court said.

Sinha explains the thinking behind her petition and what it will take for India to eradicate child labor.

Q. Let us start with a little background on the public interest litigation (PIL) you filed...

A. The 86th Amendment to the Constitution of India guarantees Right to Education as a fundamental right. But we notice that the Child Labor (Prohibition and Regulation) Act 1986 is in fact in violation of this amendment. It does not prohibit all forms child labor. In fact, while it prohibits child labor in certain industries, it regulates the conditions of work in other sectors. At the same time, if the child renders work in his own family then it is not listed as a prohibitive occupation nor can that work be regulated. Since all children are not covered under law, the Act is regressive and, in a way, offers rationalization for the continuation of child labor. This is the thinking behind our PIL, filed in the Supreme Court in July 2005 (WP 318/2005), to demand that all forms of child labor be prohibited in consonance with Article 21A of the Constitution.

Q. But isn't defining child labor tricky, especially when it is sanctioned by parents?

A. MVF believes that child labor encompasses every non-school going child, irrespective of whether the child is engaged in wage or non-wage work, or whether he/she is working for the family or others. We believe that a child out of school will sooner than later join the labor force and so is a potential child laborer. Our experience has also shown that poor children do not survive in school up to class 10 even. Many children are pushed out of school as they are unable to overcome the barriers of discrimination that they encounter while they are in school. In this regard, we also feel that every child attending a government school is a potential child laborer. This is also why I feel that the State cannot be authorized to question parents until such time that they make it possible for every child to attend school.

Q. Is it possible for the State to intervene where families hire children as domestic help?

A. If the middle class and the elite stop hiring domestic help, it would set an example for the rest of the society to emulate their behavior. It is in this context that the State has to intervene in firming up the laws on child labor. Under the present Act, domestic child labor is not even regarded as child labor. It is important that there is consensus among the elite favoring universalisation of education. As long as the elite remain isolated from the issue, programs and their implementation would remain half-hearted. They must understand that democracy involves not just voting rights but also equity among citizens.

Q. What impact has the Sarva Shiksha Abhiyan (SSA) had in preventing child labor?

A. In several states, due to the SSA's intensive enrolment drives, norms of demand for education have been created. However, since it has not planned continuance of these children in schools after class V, many of them have dropped out and joined the labor force. So, there is a need for comprehensive planning in SSA.

Q. And what about the National Child Labor Program (NCLP)?

A. MVF believes NCLP has not been effective. The program is based upon the 1986 Act, and so a critique of the program is as such a critique of the Act as well. We believe that the government's division of child labor into 'hazardous' and 'non-hazardous' occupations is inadequate. For one, all children out of school are in a hazardous condition. For another, the child labor market is very fluid. A child could be engaged in both hazardous and non-hazardous industries on different days of the week. So, a survey would never be able to adequately understand the situation.

Also, this division of the market leaves many girl children - who are fetching water or fuel wood or carrying siblings - out of the benefits of the NCLP. Their relentless activity goes unnoticed and unrecognized. Many hundreds of thousands of girls work for 12-13 hours in farms, inhaling pesticides and chemicals. MVF has also noticed that many such girls were subject to physical and sexual abuse by outsiders and family members even at the age of 10-12 years. If we are confined to 'hazardous' occupation as defined by the government, these girls have no hope.

Another set of children invisible in the present scheme of things are the hundreds of thousands of children - traditionally only boys, but now many girls - engaged in bonded labor. Also invisible are the girls who are married by 12 years of age and are mothers by the time they are 14. A child should not be a parent. The relation between early child marriage (and the consequent dropping out of school) and child labor must be understood and recognized.

Finally, it is impractical to target children working in so-called 'hazardous' industries alone. The absence of a social norm that no child must work in any form of labor will result in a new set of children taking the place of those who have been withdrawn from work. The focus must be on total abolition and in addressing the rights of children who are out of school. In doing so, children engaged in any form of child labor - including those in hazardous industries - would be covered.