INTRODUCTION
Human life is one of a kind and we must strive to preserve the sanctity of our fellow sentient beings. Basic human dignity and values must be respected and safeguarded. Law is a reflection of the values we hold near and dear to us. It is, therefore, no surprise that numerous legislations discuss aspects of upholding human integrity and protection of human rights. In today’s capitalistic world undertaking paid employment or profitable ventures are the only ways for human beings to provide for themselves. Hence it is necessary to have strict legislations in this sphere that would ensure that workers, especially labourers who cannot defend themselves are not exploited.
FORCED LABOUR IN OTHER LEGAL INSTRUMENTS
The Trans-Atlantic Slave Trade, the Holocaust and western colonization are some of the biggest injustices to human rights at an international level which displaced millions of lives and caused polarity between different races. Hence, it is inevitable that multiple international organizations and legislations that pursue human rights objectives have come up with provisions abolishing and penalizing forced labour, slavery and servitude.
Universal Declaration of Human Rights (UDHR)
Article 4 of the UDHR, declares that no person must be held in slavery or servitude and explicitly prohibits slave trade.
International Covenant on Civil and Political Rights (ICCPR)
Article 8 of the ICCPR prohibits all forms of slave trade. It further states that no one should be held in servitude or be compelled or forced into labour. It excludes service of a military character, punishment for a crime, obligations in case of emergencies and civil obligations.
International Labour Organization (ILO)
The ILO classifies forced labour as labour without the element of personal freedom. According to the ILO Forced Labour Convention, 1930, forced or compulsory labour is when work is exacted from a person who has not offered himself voluntarily and under the threat of penalty.
West Germany
Article 12 of the Constitution of West Germany grants occupational freedom except for persons deprived of their liberty by a judgement of a competent court.
United States of America
According to the 13th Amendment to the US Constitution, 1865, it is clearly stated that slavery and involuntary servitude must cease to exist in America except for the cases where a convict is required to serve his punishment.
Japan
Article 18 of the Constitution of Japan prohibits bondage and involuntary servitude with the exception being punishment for a crime.
HISTORICAL PERSPECTIVE
India is infamously known for the caste system also known as the varna system consisting of Brahmins, Kshatriyas, Vaishyas and Shudras which each consists of numerous sub-castes. There was a group lower than the Shudras who were the untouchables. Such outcasts are forced to do work that was considered to be dirty and ritualistically impure such as manual scavenging, cremation, cleaning of human defecation and such. They had no rights and were and still are socially discriminated against. Studies have shown the practice of untouchability is still prevalent even in households that have contacts outside their community. Indian society is ridiculed for income and social inequalities. Income inequality is especially prevalent among historically discriminated classes. These people do not have the right to bargain due to fear of being cornered, because social discrimination makes it difficult to get jobs.
Eurocentrism is a devastating issue that persists in Indian society 75 years after her Independence. Eurocentrism is the characterization of all European acts and values as more qualitatively significant than that of non-European origins. It is the idea portrayed across the literature of multiple subjects that European colonialism resulted in the superior race causing the civilization of the savages or barbarians of the regions it took over. However, the ill effects of colonialization in the minds of the Indian citizens are not subtle. The historically discriminating caste system and new ideas of white supremacy grew and thrived during British rule.
The zamindari system was established by the British in India in 1793 wherein zamindars who were the landlords acted as middlemen and were responsible for the collection of land revenue from the farmers. This caused the tenants to be vulnerable to debt bondage, a system by which a worker dedicates his life to work for the landlord to repay his debt. However, it was rare that one would succeed in this attempt. The debt bondage would continue perpetually for generations.
According to the National Commission for Schedule caste and Scheduled tribes, the people of the Scheduled caste and tribes are the most vulnerable to economic exploitation in the name of debt bondage. The disparity in income between the socially backward and forward classes is high in India. This is because the socially discriminated class lacks bargaining power. They fear suffering without any source of income and accept less than humane levels of remuneration for want of stability of wages. In a patriarchal country like India, women have long been oppressed. This is reflected in the religious practices that still plague the society in certain regions of India. For instance, the practice of dedicating or offering young girls, devadasis, to the deity of a specific community dehumanizes and humiliates women at a young age. They toil in temples and tolerate treatment that violates their independence and integrity.
CONSTITUTIONAL DEBATE
In Indian society, women are accorded a lower status as compared to men. This was why K.T Shah a member of the Constituent Assembly of India, wanted to prohibit the practice of offering Devadasis to temples under Article 23. He reasoned that such practices violate the sanctity of womanhood.
However, this was opposed by T.T Krishnamachari who stated that Fundamental Rights aimed to enable certain rights that ennoble human existence and bar others from creeping into those rights. He argued that evils such as the Devadasi system could be abolished by way of legislation. Since fundamental rights must be relevant in the long term, he suggested that it was clever only to include considerations against which vested interests can take a firm stand. Hence, the final provision that was adopted as Article 23 is as follows:
Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purpose, 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.
ANALYSIS OF ARTICLE 23 WITH RELEVANT PRECEDENTS
It is a well-known principle of interpretation that legislators do not use words lightly. Every word used by draftsmen has significance and is anything but futile of mere repetition. This is especially true while interpreting the Constitution of India. The Constitution of India was framed keeping in mind the historical perspective and the present and future relevance of the issue. Therefore, it is essential to understand the distinction between terms used in this provision. Using these words interchangeably could defeat the purpose of the article and fail to safeguard the people it was intended to serve.
Traffic in Human Beings
Human trafficking is a heinous activity that denies the rights of a person and exploits them for commercial value. Such victims are forced into sexual labour, marriage and other similar works that affect the sanctity of human life.
According to the SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution,
“‘Trafficking’ means moving, selling or buying women and children for prostitution within and outside a country for monetary or other considerations with or without the consent of the person subjected to trafficking”
In Raj Bahadur v Legal Remembrancer, Government of West Bengal[1], the expression ‘traffic in human beings’ was explained. It was said that traffic is the purchase and sale of human beings as if they are chattels. Such a practice is prohibited under article 23 of the constitution.
The Immoral Traffic (Prevention) Act was enacted in 1956 with the intent of punishing practices such as keeping a brother, earning by or inducing, procuring or taking a person for prostitution and other such trafficking practices. In Shama Bai v State of Uttar Pradesh[2], the constitutional validity of the Act was upheld and it was stated that suppression of human trafficking is possible without violating Article 19(1)(g).
Begar
‘Begar’ is a discriminatory, compulsory labour practice in India wherein a person in power subjects the powerless workers to work in a substandard work environment without any remuneration.
Similar forms
The term ‘similar forms’ seems like a vague addition to the provision and its meaning was a subject for debate. In Dulal Samanta v District Magistrate[1], it was observed that requiring compulsory service for purposes essential to the public does not fall within in the purview of ‘similar forms’ of forced labour. It was held that the principle of ‘esjudem generis’ must be applied and hence the general statement ‘similar forms of forced labour’ must be of the nature of human trafficking or begar.
Forced labour
Section 374 of The Indian Penal Code, 1860, punishes whoever compels any person to labour against their will. In People’s Union of Democratic Rights v Union of India[1], it was held by the Supreme Court of India that every form of forced labour and begar was prohibited whether remuneration is paid or not. The nature of the force that induces one to undertake compulsory labour may be physical or mental. Force also includes a compulsion to take up certain work due to economic conditions that makes the person helpless.
Public purpose
Article 23(2) provides an exception to Article 23(1) by stating that the State has the power to impose compulsory labour for public purposes. This includes prison labour. According to the Reformative theory of punishment, the aim of punishment must be to reform the convict and to enable him to function in society like a regular individual. Moreover, in prison labour or labour to serve a punishment is mentioned as an exception to forced labour in numerous legal texts. Therefore, compulsory prison labour is considered to be for the benefit of the public.
Compulsory Military Service
Entry 1 list 1 of the seventh schedule gives the power to the Union to make laws to defend India and to do all such acts as may be conducive in times of war. The Union, therefore, has the power to impose compulsory military service on its subjects and this is further facilitated by Article 23(2). The Government works tirelessly for the welfare of its citizens and such citizens must reciprocate the favour.
In Pratap Singh v State of Punjab[1], it was held that the compulsion of military service after superannuation is not violative of Article 23 and falls within the scope of Article 23(2).
CONCLUSION
Forced labour, human trafficking and similar practices as set out in the constitution continue to have an adverse effect on society that harm the harmonious existence of various communities. From a study on the constitutional provisions relating to forced labour in India, it is evident that the foundation against such depraved practices is inviolable. Moreover, the Apex Court and the High Courts have exercised due care in interpreting Article 23 and have successfully served the intent of the framers of the Constitution. However, these issues do not disappear overnight. The social inequalities that caused such practices to occur persist and the legislators and the interpreters of law need to be vigilant to avoid the re-emergence of such issues on a large scale.
CASE CITATION
[1] AIR 1953 Cal 522
[2] AIR 1959 All 57 at 62
[1] AIR 1958 Cal 365
[1] AIR 1982 SC 1473
[1] 1964 SCR (4) 733
REFERENCES
- Trafficking in women: Causes and Concern, volume 5 issue 1, Journal of Legal studies and research, https://thelawbrigade.com/wp-content/uploads/2019/05/Leena-Dr.-Snehal.pdf
- Annotated Bibliography on Forced/Bonded Labour in India, https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_decl_wp_13_en.pdf
- A perspective plan to eliminate forced labour in India, http://ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_decl_wp_2_en.pdf
- Eurocentrism, Forced Labour, and Global Migration: A Critical Assessment, https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0020859006002823
- Editorial: What’s in a Name? Distinguishing forced labour, trafficking and slavery, https://antitraffickingreview.gaatw.org/index.php/atrjournal/article/download/133/133?inline=1
- The absence of decent work: the continued development of forced and unfree labour in India, (PDF) The Absence of Decent Work: The Continued Development of Forced and Unfree Labour in India (researchgate.net)
- https://www.scconline.com/?gclid=Cj0KCQjwuuKXBhCRARIsAC-gM0hCzZdRDWy16guUiA6IcA9l-ULVTOYFUjkOmiL3PA_c9mt9Y6rN93waAvKeEALw_wcB
BIBLIOGRAPHY
- J.N Pandey, Constitutional Law of India, Central Law Agency, 2020
- Samaraditya Pal, India’s Constitution – Origins and Evolution, Vol. 1, Lexis Nexis A division of Reid Elsevier India Pvt. Ltd, 2014
- Durga. Das Basu, Commentary on The Constitution of India, Vol. 5, S. C. Sarkar and Sons Ltd
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