Provisions for forced labour under the Indian Constitution

The literal meaning of the word ‘force’ is to ‘make someone do something against their will’. Accordingly, the word ‘forced labour’ means to compel any person to render any service which is against their will out of coercion and threat of punishment. Forced labour is against the basic human right and a criminal offence as it strips human beings of their inherent rights. To combat the traditional practice of forced labour the Indian Constitution endows ‘Right against exploitation’ as a fundamental right under Article 23 and Article 24.

Article23 of the constitution of India under clause (1) affirms prohibition on ‘traffic in human beings’ , ‘begar’ and ‘other forms of forced labour’ and declares that if any individual fails to abide by this provision then it shall be considered as an offence punishable by law. Under Article35 of the Indian Constitution the Parliament is empowered to legislate for the contravention of Article 23. This Article safeguards people from State as well as citizens and the shield of this Article guards citizens and non-citizens both. It imposes a constructive obligation on the State to take strict action for the abolition of this evil practice in any form.

The wording of article 23 contains the expression ‘traffic in human beings’ which means to treat men and women like commodities for the purpose of selling and buying. Trafficking of women and children for purposes of immorality and otherwise, falls within the purview of this article. According to human rights watch and non- governmental organizations, the trade and traffic of women in the brothels in India is done by incarcerating them inhumanly and kept captive in working conditions where they endure sexual malfeasance by the brothel owners, traffickers, police and pimps. Therefore, India the largest democracy around the globe has outlawed human trafficking constitutionally and has manifested the fundamental right of being free from exploitation for every person by enacting The Immoral Traffic (Prevention) Act, 1956 under Article 35 of the constitution for penalizing such grievous offence.

Section 370 of the Indian Penal Code provides punishment to a person for the purpose of exploitation which includes physical or sexual exploitation and the practice of slavery or anything resembling that along with trafficking.

In slavery a person is forced to undergo such heinous and brutal practices that include ongoing physical and mental violence by their perpetrators. It is a state in which one person is enslaved by another more powerful person even though not explicitly mentioned in the constitution comes within the sphere of Article23 under the expression ‘traffic in human beings’ as held in the case of Dubar Goala v. Union of India.

The word ‘Begar’ in article 23 is of Indian origin whose actual meaning is ‘involuntary work without payment’. This provision forbids a person from rendering service against his will as well as not being paid any remuneration for the service rendered. Since the Constitution of India does not explicitly defines begar , the Court in the case of S. Vasudevan and Ors v. S.D.Mittal and Ors referred Molesworth which defines begar as ‘Labour or service exacted by a government or a person in power without giving remuneration for it’. Tambe J.further referred Wilsons Glossary for the meaning of ‘Forced Labour’ and the Bombay High Court observed that to bring the case within the purview of Article 23(1) it must be established that an individual is working unwillingly under compulsion and without wages.

Any custom which contravenes this fundamental right is void as upheld in the case of R.K Tangkhul v. R.S.Khullakpa when an odd custom of Manipur State came to court’s notice where each village householder had to offer the village headman one day’s free labour. The appellant declined such free labour and thereby challenged the custom under Article23 (1). The court passed the decree in favour of the appellant.

The right is not only granted to the beggars but also ‘other forms of forced labour’. This article restricts all forms of forced labour as it transgresses human dignity and infringes the basic human values. Begar generally signifies forced labour for which no wages are endowed or insufficient amount of payment is made. The ambit of this article extends to the extent where although payment is rendered for the service but the service is provided unwillingly out of force and compulsion. When an individual voluntarily agrees to do additional work for payment then it is not begar or forced labour. But when a person contracts with another to discharge a service for certain consideration in terms of liquidation of debt then also he cannot be compelled by law for continuous performance of such service as it would amount to forced labour under article 23. None can be forced to perform any service against their will even under contract of service.

The word ‘forced labour’ is nowhere explicitly defined under the Indian Constitution. However, the Apex Court gave explicit direction on the definition and widened ambit of Article 23 while delivering the landmark judgment in the case of People’s Union for Democratic Rights v. Union of India, 1982 which is popularly known as Asiad Workers’ case. The PUDR investigated and inquired about the working environment of the labourers associated with the Asiad Project. On the basis of their investigation the organization addressed a letter to Justice P.N.Bhagwati who considered the letter as a writ petition for violation of various labour laws. The primary allegation was that the contractors paid wages to Jamadars who deducted Rs.1 per worker per day and then made the payment of the workers which was less than the minimum wage prescribed i.e. Rs 9.25 per day. The petitioner further alleged that the respondent had violated the provisions of Equal Remuneration Act, 1976, Article 24 of Indian Constitution and provisions of Employment of Children Act, 1938 and provisions of Contract Labour (Regulations and Abolition) Act, 1970. The main issue in front of the Court was whether Article23 is applicable to the situations where the labourers are paid less than the minimum prescribed wages.

To check the scope of this Article the court considered International Instruments which includes International Labour Organization Convention 1929, European Convention for protection of Human Rights and Fundamental Freedoms, 1950 and the International Convention on Civil and Political Rights, 1966. The Supreme Court also referred two US cases- Bailey v. Alabama and Pollock v. Williams eventually passed the decree in favour of the petitioner and upheld that the ambit of Article 23 covers every form of forced labour even if the workers or persons have entered voluntarily. The court also asked the government to take significant action for encroachment of Article 23 by private individuals.

It also held that forced labour should be characterized as any work for which the labour’s payment is lower than the wage stipulated by the government. Further, Justice Bhagwati delineated the term ‘force labour’ by saying that it incorporates compulsion emerging out of financial crisis, physical compulsion, hunger and poverty which leaves no option to an individual other than getting payment less than the minimum wage prescribed by law.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

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