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Right Against Exploitation: Protecting Citizens from Exploitation and Trafficking

‘Exploitation’ means depriving an individual of his rights or causing legal injury to an individual.

Articles 23 and 24 of the Indian Constitution grant the right against exploitation, a fundamental right to the citizens of India to prevent them from any form of exploitation by the state or private parties.

The right against exploitation includes prohibiting human beings from forced labour or children’s employment in factories or other hazardous places. The right also prohibits acts of human trafficking. It ensures that no citizen of this country is exploited based on race, religion, caste, sex or place of birth by any other more privileged section of the society.

The exploitation can be in any form apart from the above-stated grounds.

Right against exploitation

The right against exploitation is a fundamental right which means it cannot be taken away even by the state except under the due procedure established by law.

It is the basic part of the constitution of India enshrined in part III of the constitution.

The Parliament is authorised to prescribe punishments against violating the rights prescribed under part III of the constitution.

Article 23—Prohibition of traffic in human beings and forced labour

Article 23 sub-section (1) deals with the prohibition of three things:-

  • Trafficking in human beings
  • Begar
  • Other forms of forced labour

The contravention of any such prohibition is a punishable offence.

Human trafficking

Human trafficking is the trading of human beings through the sale and purchases mainly for sexual slavery, prostitution, forced labour, etc.

Poverty, scarcity of resources, and unemployment is the most prevalent cause of trafficking in human beings in many parts of the country, mostly rural regions.

Begar

Begar is a form of forced labour in which an individual is forced to work for someone else without remuneration. The individual needs to work against his will.

Other forms of forced labour

Forced labour is a form in which an individual is compelled to work against his will with less or no remuneration.

This article also forbids ‘bonded labour’. Bonded labour is when a person is compelled to work against any unpaid loan or debt.

Exceptions under Article 23

There are some exceptions to this right against exploitation. Sub-section (2) of Article 23 states the exceptional circumstances when a state can impose such restrictions on an individual working under its services.

These restrictions exercisable by the state are reasonable.

The sub-section (2) states that:

  • Nothing in this section applies to the state for imposing compulsory services for a public purpose. While imposing such services, the state will not make discrimination based on race, religion, caste or class.
  • Sex is not a prohibited ground for discrimination, indicating that women could not be exempted from compulsory public service. Term class is used in a purely economic sense.
  • States can impose compulsory services in national security, literacy or public utility services like water, electricity, postage, rail, and air.

So, the state is authorised to make provisions imposing limitations on an individual employed in its services.

Case laws relating to Article 23

State through Gokul Chand v Banwari and Ors.

Can a person from a scheduled caste refuse to serve his employer in the ordinary course of business by taking the ground of ‘begar’?

In the case of State through Gokul Chand v Banwari and Ors. (1951), the appellants contested Sections 3 and 6 of U.P. Removal of Social Disabilities Act, 1947, under which they were convicted, are violative of Article 23 of the Indian constitution.

Section 3 of the act stated that no person could refuse to render any service to his employer on the ground that he belongs to a scheduled caste if such service lies in the ordinary course of business.

The Court held that it is illegal for a person to refuse service to his employer, and it does not equate to begar if that person belongs to a scheduled caste.

D.B.M. Patnaik v. the State of A.P.

Whether denying wages to a jail inmate violate Article 23(1) of the constitution of India?

In the case of D.B.M. Patnaik v. State of A.P.(1974), the court held that an inmate does not surrender his citizenship nor does he lose his civil rights, except rights like freedom of movement, which are necessarily lost because of the very fact of imprisonment.

The consequence is that denying a prisoner reasonable wages in return for his work will violate the mandate in Article 23(1) of the Indian Constitution. Consequently, the State could not deny such reasonable wages to the prisoners for working in prisons.

Peoples Union for Democratic Rights v. Union of India

Peoples Union for Democratic Rights v. Union of India, (1982) (also known as the Asiad Workers Case)

Facts:- An organisation established for the protection of democratic rights of people investigated the conditions of the workers employed in various Asiad projects.

The investigation found that the fundamental right of right against exploitation was violated, consequently initiating public interest litigation.

There was an unequal distribution of remuneration among the male and female workers, which was against the Minimum Wages Act 1948 provisions.

Held:- The Apex Court interpreted the scope of Article 23 in the case and held that the term ‘force’ under this article has an extensive meaning.

This ‘force’ includes physical force, legal force and other 6 economic factors which compel a person to offer labour at a wage less than the minimum wage.

So, the court held that if a person is compelled to provide labour for a wage less than the minimum wage because of poverty, need, destitution or hunger, it will be considered as forced labour.

The Court also emphasised the meaning of “all similar forms of forced labour”, as mentioned in Article 23 of the Constitution of India. It stated that not only begar but all forms of forced labour are prohibited, which means that it would not matter if a person is provided remuneration or not as long he is forced to supply labour against his will.

Sanjit Roy v. the State of Rajasthan

Facts:- In the case of Sanjit Roy v. the State of Rajasthan (1983), the state government employed a large number of workers under the Rajasthan Famine Relief Works Employees ( Exemption from Labour Laws) Act, 1964 for the construction of a road to provide them relief from drought and scarcity conditions prevailing in their area.

The people employed were paid less than the minimum wage, which was allowed in the Exemption Act.

Held:- The Court held that the Rajasthan Famine Relief Works Employees (Exemption from Labour Laws) Act, 1964 is Constitutionally invalid legislation regarding the exclusion of the Minimum Wages Act.

The court observed that it’s essential to pay the minimum wage to all the workers employed under the state for any famine relief work, regardless of whether the person is affected by drought or scarcity.

It is essential so that the state may not take advantage of the helpless situation of the people affected due to famine, drought etc. The court upholds that the people must get paid fairly for the work they put in effort and sweat, which also provides benefits to the state in return.

Bandhua Mukti Morcha v. Union of India

What is the condition to consider employment as bonded labour?

Facts:- In the case of Bandhua Mukti Morcha v. Union of India (1984), Justice Bhagwati treated a letter sent by the petitioner as public interest litigation.

The letter contained observations from a survey conducted in some stone quarries in the Faridabad district, where many workers were working in “inhuman and intolerable conditions”, and many were forced.

The Court laid down guidelines for identifying bonded labourers and laid the duty on the state government to identify, release and rehabilitate those labourers.

Held:- The court held that any person employed as a bonded labourer is deprived of his liberty and becomes a slave. As a labourer surrenders, his freedom of forced labour is thrust upon him.

State of UP vs Madhav Prasad Sharma

Whether “no work, no pay” violates article 23 of the constitution of India?

In the case of the state of UP vs Madhav Prasad Sharma (2011), the court of law held that denying salary to an employee on the ground of “no work, no pay” cannot be treated as a penalty and would not be “begar” within the meaning of Article 23 of the constitution of India.

Cases on exceptions of Article 23

Dulal Samanta v. D.M., Howrah

Does a police officer perform the compulsory duty under the state’s service considered forced labour?

In the case of Dulal Samanta v. D.M., Howrah (1958), the petitioner was served with a notice to appoint him as a special police officer for a period of three months. He contended that it violated his fundamental right under Article 23 of the constitution, resulting in “forced labour.”

The Court dismissed his appeal and ruled that conscription for services of police could not be considered as either: (i) beggar; (ii) traffic in human beings; or (iii) any similar form of forced labour. Hence, the notice given for appointing a person as a special police officer is not a prohibition of Article 23.

Devendra Nath Gupta v. the State of M.P

Whether the service rendered in the interest of the public or for public purpose comes under the ambit of forced labour?

In DevendraNath Gupta v. the State of M.P (1983), the M.P. High Court held that the compulsory service rendered by the teachers towards educational surveys, family planning, preparation of voters lists, general elections, etc. were for “public purpose‟ and if no remuneration was paid for it, that did not contravene Article 23 of the constitution of India.

Article 24 – Prohibiting Children’s employment in factories, etc.

Article 24 of the Indian constitution prohibits child labour. It states, “A child below the age of fourteen should not be employed to work in a factory, mine or any other form of hazardous employment.

Articles 39(e) and 39(f) of the constitution are also known as Directive Principles of State Policy.

Article 39(e) focuses on the health and safety of children and that they should not get abused at a tender age.

Article 39(f) talks about providing opportunities and facilities for children to develop healthily. It also states that freedom and dignity should be provided to children, so their childhood and youth remain protected against exploitation or material or moral abandonment.

The Factories Act, 1948

It was the first act enacted after independence to uplift the labourers employed in factories, mines and hazardous employments.

It introduced provisions related to fixing the minimum age of children as fourteen years.

The 1954 amendment of the act stated that children below seventeen years could not get employed at night.

The Mines Act of 1952

The mines act 1952 is also consistent with the fundamental right of right against exploitation. The Mines Act, 1952 consists of provisions related to workers’ health, safety, and welfare in the coal, metalliferous and oil mines. The Act prescribes the owner’s duties to manage mines/mining operations and the health and safety of workers employed under them.

It also provides for the standard number of working hours in mines, the minimum wage rates, and related matters.

The act of 1952 prohibits the employment of people below the age of 18 years.

The Child Labour (Prohibition and Regulation) Act, 1986

The Child Labour (Prohibition and Regulation) Act, 1986 defines a child. It states that anyone who has not completed his fourteenth year is a ‘child’. This provision is in terms of the right against exploitation.

The act forbids children from working in any occupation mentioned under Part A of the Schedule and working at places where specific processes are undertaken, as mentioned in Part B.

The Act’s provisions do not apply to private entities where the occupier works with his family’s help or in a government recognised or aided school.

The act also demanded the establishment of a Child Labour Technical Advisory Committee (CLTAC) entrusted with the duty of advising the government about additions to the Schedule lists.

Part III of the act laid the conditions under which children may work in occupations/processes not listed in the schedule.

Children do not have permission to work for more than three-hour stretches and must receive an hour break after the three hours as per the act.

Children are also not allowed to work for more than six-hour stretches, including their break intervals, and cannot work between 7 p.m. and 8 a.m.

Any child is not permitted to work overtime or in more than one place on a given day. A child must receive a holiday from work every week.

The child’s employer must notify the inspector in his jurisdiction about the children working in his establishment and maintain a register of all children employed for inspection.

If a dispute arises on the determination of the age of the child, the inspector is authorised to take the child for a medical examination to determine his/her age (in the absence of a birth certificate).

The government is responsible for establishing adequate health. And the working conditions for children shall be set for each particular kind of establishment, a class of establishments.

Section IV of the act outlines various remaining aspects, such as penalties.

The penalty for allowing a child to work in prohibited occupations/ processes outlined in the schedule is a minimum of 3 months of imprisonment or a sentence of a minimum of Rs. 10,000 in fines. The repeated offenders are subject to a punishment of a minimum of six months.

Offenders can only get tried in courts higher than a magistrate or metropolitan magistrate of the first class. Courts also can appoint people to be inspectors under this act.

Child Labour (Prohibition and Regulation) Amendment Act, 2016

The Child Labour (Prohibition & Regulation) Amendment Act, 2016, came into force on 1st September 2016. The Amendment Act entirely prohibits children’s employment below 14 years.

The amendment prevents children by providing them with the right against exploitation, prohibits the adolescents’ employment in the age range of 14 to 18 years in hazardous employments, and regulates their working conditions where they are not restricted.

The amendment provided stricter punishment for employers for violation of the Act and made the offence of employing any child or adolescent by contravening the provision of the act cognisable.

The amendment authorises the competent Government to confer such powers and impose such obligations on a District Magistrate as necessary to ensure efficient implementation of the Act’s provisions.

Further, the state’s action plan will be circulated to all the States/UTs to ensure effective and prompt implementation of the Act.

Child Labour (Prohibition and Regulation) Amendment Rules, 2017

Child Labour (Prohibition and Regulation) Amendment Rules, 2017 has amended the Child Labour (Prohibition and Regulation) Central Rules after extensive consultation with the stakeholders.

The rules provide a specific and broad framework for preventing, prohibiting, rescuing and rehabilitating child and adolescent workers.

It also clarified issues concerning aid in family and family enterprises through children. There were some specific provisions incorporated into the rules.

Further, it safeguards artists permitted to work under the Act regarding work hours and conditions.

The rules consisted of provisions incorporating duties and responsibilities of enforcement agencies to ensure effective implementation of the Act and for protection of the fundamental right of right against exploitation.

Conclusion

The right against exploitation protects the citizens from the acts of the state and grants protection to the citizens against private parties’ acts. This right also prevents an individual from indulging in forced or bonded labour.

It prohibits the employers under state government or private entities to oblige with the act’s provisions and avoid any malpractices to gain an unfair advantage by exploiting the workers.

The lack of awareness among the workers could lead to various forms of mental, physical, and financial exploitation. So, the people prone to exploitation must be protected by making them aware of their rights.

FAQs

What was held in the case of Bachpan Bachao Andolan v. Union of India (2006)?

The apex court held that if all the children employed in the circuses have not completed 14 years of age, they are prohibited from being employed in a circus.

Name one international convention for the protection of child rights India is a signatory of?

Convention on the rights of the child, 1989

What does CLTAC stand for?

Child labour technical advisory committee.

Under what provision of the child labour (prohibition and regulation) act, 1986, appointments of inspectors are made?

Section 17.

About Author

Ayush Ranjan Jha is a 4th-year law student of Vivekananda Institute of Professional Studies (VIPS), IP University, Delhi.

He is inquisitive towards Corporate law, International law & Constitutional law.

He is very keen on research work and got published a number of Research papers and articles related to legal topics during his previous academic years.

Currently, he is preparing for Judicial services examinations.

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