In this article, the author has provided various rights that exist against exploitation. These rights are within the context of Article 23 and 24 of the Constitution.
Article 23 and 24 provides fundamental right against exploitation. The exploitation of lower castes by upper caste, practices like Sati Pratha, Devadasi system, forced prostitution, human trafficking, employing children in hazardous industries are some of the very common incidences of exploitation in India.
Through Article 23 and 24, the constitution of India expressly mentions its commitment to save humans being from the scourge of exploitation.
Exploitation is a word borrowed from French. ‘Exploitation’ means depriving a person of his due through force or fraud. When a person is denied his share, reward or remuneration for his contribution of labour and service for producing the wealth then it is known as exploitation.[i] Marx links exploitation with that of surplus-value. It is a phenomenon where one enjoys the fruits of labour without performing any of the tasks of labour.
Article 23: Prohibition of Trafficking of Human Being and Forced Labour
Article 23(1) prohibits 3 aspects of exploitation-
3. Forced Labour
and mandates that any contravention of such prohibition shall be an offence.
The parliament has power under Article 35 to make a law prescribing punishment for all those acts which are prohibited under part III of the constitution.
In pursuance of such power, parliament has enacted several laws prohibiting forced labour, begar and trafficking. Laws passed by the Parliament in pursuance of Article 23:
A. Suppression of Immoral Traffic in Women and Girls Act, 1956
B. Bonded Labour System (Abolition) Act, 1976
It means the sale and purchase of human beings mostly for sexual slavery, forced prostitution, or forced labour. Slavery is not expressly mentioned under Article 23 but it is included within the meaning of ‘traffic in human beings.’
It means forcing a person to work for no remuneration. A person is compelled to work against his will.
Other forms of forced labour
It is considered forced labour if the less-than-minimum wage is paid. This article also makes ‘bonded labour’ unconstitutional. Bonded labour is when a person is forced to offer services out of a loan/debt that cannot be repaid.[ii]
The Calcutta High Court in Dulal Samanta vs Dist. Magistrate[iii] interpreting the expression -other similar forms of forced labour held that the expression is to be interpreted ejusdem generis and it has to be something like either traffic in human beings or begar.
Ban against traffic in a human being is absolute but ban against forced labour is subject to one exception as mentioned in Article 23(2)
The state can impose compulsory services for a public purpose like national defence, removal of illiteracy or the smooth running of public utility service like water, electricity, postage, rail, and air services.[iv]
In making any such provision compulsory for public purposes, the state cannot discriminate on the grounds of religion, race, caste or class or any of them. Sex is not a prohibited ground of discrimination which indicates that women could be exempted from compulsory public service. Term class is used in pure economic sense.
However, no such law at the central level is made in India so far in its history. For a brief period in Nagaland, there was a law that said that in case of impeding blood able-bodied person can be called to join the army.
Important Judgments on Rights against exploitation (Article 23)
1. People’s Union for Democratic Rights v. Union of India AIR 1983 SC 1473 [v]
The Supreme Court interpreted the scope of Article 23. The petitioner scrutinized the working conditions of various people employed in Asiad projects. It was discovered that the labourers were subject to great exploitation, they were not given minimum wages, subjected to an inhumane working environment. PIL was filed.
J. PN Bhagwati observed that the scope of Article 23 is vast and unlimited. It is not merely ‘begar’ which is prohibited but this Article strikes at forced labour in whichever form it may exist. Every form of forced labour is prohibited.
No person shall be forced to provide labour or services against his will even if it is mentioned under a contract of service.
The word ‘force’ has a very wide meaning under Article 23. It not only includes physical or legal force but also recognizes economic circumstances which compel a person to work against his will on less than minimum wage.
2. Sanjit Roy vs State of Rajasthan AIR 1983 SC 328 [vi]
In this case, the state had employed people for the construction of roads. Their work was allowed under the famine relief act. These workers were paid way less than the minimum wages. It was contended that this payment of wages lower than minimum wages was violative of Article 23.
Court held that the state is not allowed to take undue advantage of the helplessness of people with an excuse of helping them to meet the situation of famine or drought.
The court observed that they must be paid fairly for the work into which they put in effort and sweat, and which provides benefits to the state.
3. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802 [vii]
Bandhua Mukti Morcha is an organization that works against the prevalent system of bonded labours in India.
This case is special in the sense that the court for the first time accepted and treated a letter written to J.Bhagwati as a petition for PIL. The letter described the ordeal of a large number of workers in the Faridabad district of UP who were working in inhuman and intolerable conditions.
The court laid down guidelines for the determination of bonded labourers and pointed out that it was the duty of the state government to identify, release, and rehabilitate the bonded labourers.
Article 24- Prohibition of Employment of Children in Factories, etc
Article 24 must be read with A. 39(e) and A. 39(f) of DPSP which provides for the protection of health and strength of children and that the tender age of children should not be abused.
Article 24 prohibits employment of children below 14 years of age in any factory, mine or any other hazardous employment.
The Supreme Court in Peoples Union for Democratic Rights v. Union of India (AIR 1982 SC 1473) [viii] held that building construction work was such hazardous employment where children below the age of fourteen years should not be employed. The court also pointed out the horizontal nature of Article 24. Prohibition of Article 24 could be enforced against everyone, whether State or private individual.
In MC Mehta Vs State of Tamil Nadu [ix] – MC Mehta brought before the court the plight of children engaged in Sivakasi cracker factories. In this case, the Supreme Court directed setting up of Child Labour Rehabilitation Welfare Fund and asked the employer to pay Rs. 20,000 as compensation to each child.
India is also a signatory of the Convention on the rights of child, 1989[x] Article 32 of the convention requires that each state party to the Convention shall protect the children from economic exploitation and any hazardous work. India ratified the convention in 1999. In pursuance of the obligation under Article 24 and international instruments, parliament has enacted various laws against child labour–
Factories Act 1948; Mines Act, 1952; The Bidi and Cigar Workers(Conditions of employment act),1966; the apprentices’ act,1961; the employment of children act 1938; and other similar acts.
Child Labour (Prohibition and Regulation) Amendment Act, 2016[xi]amended the child labour (prohibition and regulation) Act, 1986.
The amendment act prohibited the employment of children below 14 years of age in all occupation and industries except those run by the child’s own family. Before the amendment employment of children below 14 years in domestic work was completely legal.
A complete prohibition has been imposed on the employment of child labour (i.e. a person below the age of 14 years) in any establishment whether hazardous or not. A child is permitted to work only to help the family in family enterprise after school hours or during vacations.
India finally ratified convention number 182 of the International labour organization[xii] which deals with prohibition and elimination of worst forms of child labour and provides that no child shall be employed in a hazardous occupation. Interestingly, India is one of the last countries to ratify the convention. Nevertheless, the act introduced a new category called adolescents which cover person between14-18years of age. The amendment permits the employment of adolescent labour except in hazardous processes or occupation.
The number of hazardous occupations and processes has been reduced from 83 to only 3-mining, explosives, occupations mentioned in the factories act 1948. It leaves children open to employment in all other kinds of hazardous industries including construction, asbestos, brick kilns, glass factories and garbage picking.[xiii]
It provides for the setting up of the Child and Adolescent Labour Rehabilitation Fund[xiv]in which all the amounts of penalty have to be realized. This provision has been drawn from MC Mehta judgment.
The amendment has been widely criticized for being toothless and instead of eradicating child labour by its very root, it rather makes way for child labour to thrive.
The existence of practices like exploitation and child labour is a blot on a civilised society. The truth remains that despite numerous laws made in pursuance of article 23 and 24 we are still far from achieving a status of zero exploitation. Instead, India is home to 10 million child labourers and more than 42.7 million children are out of school [xv].
The exploitation of the weak by the stronger continues unabated. Forced labour, bonded labour, trafficking continues to exist. The thrust needs to be on education, awareness, concerted efforts on part of concerned authorities, generation of funds, creating employment opportunities in curbing the evil.