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“Every modern war has had its roots in exploitation” -HELEN KELLER
INTRODUCTION
Exploitation means the misusing of services rendered by someone with the help of any force. This concept of exploitation violates the basic principles laid down in the Indian Constitution. It also opposes the Directive Principles of State Policy given under Article 39 of the Indian Constitution which ensures economic equality among all. To put a hindrance to these exploitations the Indian Constitution has laid down certain provisions against exploitations in Article 23 and Article 24. These rights ensure liberty and dignity to all citizens leaving no scope for ill-treatment and slavery. Article 23 prohibits human trafficking in any form, forced labor, and any such activities and Article 24 forbids any child below 14 years to work in factories, mines, etc.
ARTICLE 23 IN DETAIL
Article 23 of the Indian Constitution states:
Prohibition of traffic in human beings and forced labour:
(1)Traffic in human beings and beggars and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence , punishable by law.
(2)Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste, or class or any of them.(1)
So, in simple words, we can say that this article exists against any kind of exploitations like forced labour, begar, etc. done to humans. All these injustices cannot be appreciated and this article points out that all such activities are a punishable offence under the law. The laws will be legislated by the Parliament under the power that it has been extended by Article 35 of the Constitution. Even the Indian Penal Code provides certain punishments for such offences. Buying and selling of persons and slaves are punishable under Section 370 and section 374 penalizes forced labour; Section 372 punishes the selling of a minor for prostitution or immoral purposes and Section 373 avenges buying a minor for such purposes. Article 23 provides for constitutional embargoes to such punishments. However, clause (2) of this article serves as an exception.
PRACTICES PROHIBITED BY ARTICLE 23
If we divide clause(1) of this article into 2 parts, the first part depicts certain practices forbidden by law, and the second part deals with the consequences of performing such forbidden activities. The following are the activities forbidden.
Human Trafficking: It means selling and buying men and women like commodities. It also comprises immoral traffic in women and children for prostitution, porn, etc. This provision also encompasses devadasis. Devadasis refer to a civil practice of devoting young woman to temples which amounted to trafficking. This system is prevailing in Western Uttar Pradesh, Karnataka, Tamil Nadu, etc. Although slavery isn’t specifically mentioned in this article, it is contained in the ambit of human trafficking. Slavery refers to the condition in which one human being is acquired by another. Modern slavery is the severe exploitation of other people for private or commercial profit.
Begar: This word(which hasn’t been defined in the Constitution) may be defined as labour imposed by a Government or a person in power without giving remuneration for it. The word refers to forced labour for which no wage is provided. In other words, the person is compelled to work against his will without being reimbursed for it. This existed in the zamindari system where zamindars used to impel the persons to carry their goods when they moved from one place to another.
Forced Labour: It refers to any labour or service which people are forced to do against their will under the threat of penalty. The sagri or hali system which existed in some parts of Rajasthan is an instance of forced labour. In this system, a creditor gives a loan to a debtor on the condition that until the loan is repaid with interest, the debtor or any member of his family is to render labour or personal aid to the creditor or any other person nominated by him. What is deterred by this clause is the making of an individual to furnish service where he is lawfully entitled not to work or to receive earnings of the services provided by him. So, this clause doesn’t prevent forced labour as a punishment for criminal offences. As a result of Article 23, around twelve Acts that permitted forced labour became void on the enactment of the Constitution, providing solace from forced labour for many people.
Bonded Labour: This is a form of forced labour under which a person is urged to work to pay off his debt. The money they get is very limited and the work they do receives doubled. Frequently these debts get passed over to successive generations. This system existed in Western Uttar Pradesh, Odisha, Bihar, etc.
Other forms of forced labour: This includes where a person works for a wage less than the minimum wage. Also, prison labour wherein the prisoners are brought in for severe imprisonment and threatened to work without even the slightest remuneration.
The second part of clause(1) states that any activity that is contrary to the above-illustrated activities is a punishable offence. Article 35 authorizes the Parliament to formulate laws for penalizing the acts which are excluded under Article 23. The State is obliged to take actions against perpetrators of these acts to safeguard the citizens.
EXCEPTION TO ARTICLE 23
Clause(2) of this Article is an exception. This clause says that the State can impose compulsory services for public objectives provided there is no discrimination on grounds of religion, race, caste, or class. The Government is not bound to pay back for such compulsory services. This provision enables the Government to recruit people in times of national catastrophes like war, floods, etc. It is apparent from the grounds of discrimination, that sex isn’t included as a criterion. Although this clause doesn’t mention, obviously the imposition of such services has to be by law, as a mere executive order of the State wouldn’t serve for the objective. Many countries have such policies. In Israel, everyone above 18 years of age must perform military service for 2 to 3 years.
An important characteristic of Article 23 is that it empowers protection to citizens not only against State but also from private citizens. Another point to be noted is that the preservation of this article is accessible to both citizens and non-citizens.
LANDMARK JUDGMENTS
Some important cases concerning Article 23 are discussed below.
In People’s Union for Democratic Rights v. Union of India(2), the Supreme Court inferred the ambit of Article 23. In this case, the petitioner was an organization formed for the conservation of democratic rights. The organization took efforts to examine the conditions under which the workmen engaged in various Asiad projects were working. It was found that various labour laws were violated. In this case, certain aspects like the labourers not being given the minimum remuneration as in the Minimum Wages Act, 1948, and unequal income distribution among men and women were brought out. The Court said that the workforce in this article has a very broad meaning. It includes both physical and legal force and also other economic aspects which force an individual to provide labour at a wage less than the minimum wage. The Court also gave clarification regarding the meaning of “all similar forms of forced labour.” Not only begar but also all forms of forced labour is forbidden. This means that it wouldn’t matter if a person is given remuneration or not as long as he is forced to provide labour against his will.
In the case of Sanjit Roy v. State of Rajasthan(3), the State employed a large number of workers for the building of a road to give them relief from drought and poverty situations prevailing in their area. This employment fell under the Rajasthan Famine Relief Works Employees(Exemption from Labour Laws) Act, 1964. These people were paid less than the minimum wage, which was allowed in the Exemption Act. The Court decided that the Rajasthan Famine Relief Works Employees( Exemption from Labour Laws) Act, 1964 is constitutionally invalid as to the exclusion of the minimum wages act. This means that minimum wage should be paid to all people employed by the state for any famine relief work, nonetheless of whether the person is affected by drought or scarcity or not. This is necessary so that the state doesn’t take benefit of the helpless condition of the people affected by famine, drought and ratifies that they must be paid fairly for the work they do.
In Deena v. Union of India(4), it was held that forced labour also includes taking labour from prisoners without paying proper remuneration and it is violative of Article 23 of the Indian Constitution. Even the prisoners are entitled to payment of satisfactory wages for the work taken from them and the Court is under a duty to implement their claim.
Bandhua Mukti Morcha v. Union of India(5), The petitioner, Bandhua Mukti Morcha is an organization waging a conflict against the dreadful system of bonded labour. The organization sent a letter to Justice Bhagwati and the Court treated it as a Public Interest Litigation. The letter comprised its statements based on a survey it conducted of some quarries in the Faridabad district where a large number of workers were found working in inhuman and intolerable circumstances. The Court laid down certain guidelines for determining bonded labourers. It stated that the State Government is duty-bound to recognize, release and rehabilitate the bonded labourers. The Court mentioned that any individual who is employed as a bonded labourer is restrained of his liberty. Such a person turns into a slave and his freedom in a matter of employment is completely taken away. It was also held that whenever a worker is involved in forced labour, the Court would presume that he is doing so in some economic consideration and is therefore considered as a bonded labour. This presumption can only be denied against by the employer and the Government if reasonable evidence is provided.
In the case of Dulal Samanta v. The District Magistrate, Howrah(6) the petitioner was served with a notice designating him as a special police officer for a duration of three months. He complained that this infringed his fundamental right as it is a form of forced labour. The Court condoned his appeal and held that conscription for services of police cannot be evaluated as begar, traffic in humans, or any similar form of forced labour. Hence the notice given isn’t a prohibition of Article 23.
State v. Banvari(7) In this case, the appellants including 5 barbers and dhobis challenged against Section 3 and Section 6 of the U.P. Removal of Social Disabilities Act, 1947 under which they were condemned. Section 3 of the Act says that no person can reject to provide any service to another person on the ground that he belongs to a scheduled caste. Provided that such service lies in the ordinary course of business. The appellants contested that this Section is violative of Article 23. But the Court opposed and held that making it illegal for a person to deny service to someone just because that person belongs to a scheduled caste doesn’t amount to begar.
The 13th Amendment to the Constitution of America contains a similar provision. It states that neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted, shall exist within the United States or any place subject to their jurisdiction. Americans had to fight a civil war to eradicate this evil of slavery from their country.(8)
SUPPRESSION OF IMMORAL TRAFFIC IN WOMEN AND GIRLS ACT, 1956: This act was given assent on December 30, 1956. It is acceptable to the whole of India. This act mainly aimed at restraining immoral traffic in women and children. The 1986 amendment altered the name of the act to “The Immoral Traffic(Prevention) Act, 1956. Some of the objectives are to punish trafficking for prostitution, to punish those living off the earnings of a woman, to punish traffickers, to punish soliciting for prostitution, etc.
BONDED LABOUR SYSTEM(ABOLITION) ACT, 1976: The main objective of the Act is the identification, release, and rehabilitation of bonded labourers. Some of its salient features are; a)understanding of the want for machinery relating to its implementation. b) The Act envisages the Constitution of Vigilance Communities at the District and sub-divisional level to advise the District Magistrate and to assure the execution of the provision of the Act. c) Section 16 to 19 of the Act deals with penal penalties if carried out efficiently would have a requisite effect.
MINIMUM WAGES ACT, 1948: This act came into effect after World War 2 in 1948. In India, employers exploit manual labourers by providing them with low wages which are hardly enough to meet their needs. Hence the legislature enacted this Act to prevent the payment of wages below the employee’s subsistence level. The Act shelters the interest of the workers engaged in the unorganized sector. This Act provides for the fixation and revision of the lowest wages of the workers engaged in occupation. The wages given to the workers by the employers should be obeying the Minimum Wages Act, 1948.
CONTRACT LABOUR (REGULATION AND ABOLITION) ACT, 1970 : The Act aims at deterring the employment of contract labour in certain occurrences. It also governs the working conditions of contract labour during employment. The Act strives to provide necessities to the employees and secure they do recognize certain rights which are at par or equivalent to the benefits given directly to employees.
EQUAL REMUNERATION ACT, 1976: The chief intention of this Act is to provide payment of income to both men and women in an even manner. This Act was brought into force to avoid any discrimination against women and to deal with them in a just and reasonable manner. Every employer covered under this Act is obliged to pay remuneration at a rate which shall not be less favourable to the other gender if the work is the same or of a similar nature.
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