The Right Against Exploitation in India
May 12, 2022 • Nikita Saha
AUTHOR'S PROFILE: This article is written by Pratyusha Mohanty, a 3rd-year law student at Madhusudan law college, Cuttack.
India is home to more slaves than any other in the world. There are millions of cases reported every second of the day of human abduction and trafficking, mostly of young children and women. It can occur not only within a country but also trans-nationally. It is a crime that involves a violation of human rights using exploitation and coercion. Exploitation means the misuse of services rendered by others with the help of force. Various types of enslavement and injustice are covered by the Right against Exploitation. Right against exploitation is one of the six fundamental rights which is enshrined in part III of the Indian constitution. According to the estimates, approximately 20-65 million people in India are lured or forced into trafficking within the country for commercial sexual exploitation, forced labor, slavery, and removal of organs or tissues, such heinous crimes happen in those vulnerable areas where the people have less power and money as compared to the privileged. Exploitation goes against the Indian Constitution's basic premise, the Preamble, and the Directive Principle of State Policy enshrined in Article 39 of the Indian Constitution, which promotes economic equality among individuals. It took many years for India to be free of slavery, but slavery was eventually abolished in 1860 with the passage of the Indian Penal Code. Such activities were outlawed by the Indian Constitution's framers in Articles 23 and 24.
The Indian Constitution guarantees every human liberty and dignity, removing any possibility of coercion, slavery, or ill-treatment. The right against exploitation is a compliment to the charter of Freedom as enshrined in Article 19 of the Constitution. Moreover, the Preamble to the Constitution has pledged to maintain ‘liberty, equality, and justice for all". As a stark reality, since time immemorial people such as the ‘untouchables’ were victims of exploitation in several ways. Furthermore, in many parts of the world, a vicious practice existed whereby laborers who worked for one person could not leave him to work for anyone else. As a result, they were effectively the masters' slaves. Above all, they were underpaid and undernourished, while the wealthy employers subsisted on the labor of these unfortunate workers. Slavery was thus continuing to occur in other heinous ways.
DD Basu has correctly stated that, rather than using the words "slavery," our Constitution has wisely forbidden "human trafficking," "forced labor," and "begging." There are undoubtedly more inclusive expressions that encompass all forms of abuse of society's poorer members. In the draft prepared by B. R. Ambedkar, K. M. Munshi, and K. T. Shah, the right against exploitation was stated. While Ambedkar's draft clearly stated that subjecting an individual to forced labor or involuntary servitude was illegal. K.M Munshi’s draft was more detailed, including provisions for the abolition of all forms of slavery, human trafficking, and forced labor. K. T. Shah specifically prohibited all forms of slavery, but he also acknowledged the government's right to conscript the country's manpower for national security, social welfare, or responding to a sudden emergency.
The framers of the Constitution were well aware that children needed special care due to their physical and mental immaturity. This is expressed in the Constitution's various articles.
- The state has the authority under Article 15 to make special provisions for children.
- Article 23 guarantees the fundamental right to be free from exploitation, as well as the right of children to be free from sexual and bonded labour exploitation.
- Child labour under the age of 14 is prohibited in any factory, mine, or castle, as well as in any other hazardous employment, according to Article 24 of the Indian Constitution.
- Articles 39(e) and 39(f) of the Indian Constitution obligate the government to protect children and youth from abuse, and moral and material abandonment.
These rights are not only "fundamental," but also "enforceable," because any aggrieved individual can move the Supreme or a High Court for their restoration under Article 32 and Article 226, respectively.
Poverty, social norms that condone child labour, a lack of decent job opportunities for adults and youth, migration, and emergencies are all factors that contribute to child labour and abuse. These causes are both the cause and the result of socioeconomic inequities exacerbated by discrimination. There are a lot of reasons that stem human trafficking including political dissension, war, globalization, natural disaster, and the search for a better life. About 59% of adolescents do not know how to protect themselves from trafficking, and 72% do not know about the services that are available to help them. An individual who has been trafficked is unable to offer genuine consent to be trafficked. When victims of human trafficking give their consent, they are often unaware of the real and full nature of what they are agreeing to. For example, a victim of human trafficking may have agreed to work abroad but once reaching the destination country, the person's records may be seized by smugglers, and they may be forced to perform agricultural labor and other forms of exploitation for little or no pay.
On a global level, the 1989 Convention on the Rights of the Child, to which India became a signatory in 1992, exhorts the State Parties to avoid various forms of child trafficking. Economic exploitation, trafficking in narcotic drugs and psychotropic substances, sexual abuse and exploitation, kidnapping, selling, or trafficking in children for any reason or in any way, and all other types of exploitation prejudicial to any part of the child's welfare are covered in Articles 32-35. According to the 2016 Global Slavery Index, 18.3 million people in India are enslaved, and according to the United Nations Children's Fund (UNICEF), nearly one in ten (about 152 million) children around the world are involved in child labor, with about half of them working in hazardous conditions. Additionally, 30 million children do not live in their country of birth, increasing their risk of being trafficked for sexual and labor exploitation. it is estimated that by 2025 approx of 121 million children will be doing child labor and 52 million will be in hazardous work. According to a 2016 UN Office on Drugs and Crime report, approximately 71% of women and girls are trafficking victims, while men and boys are also trafficked for sexual abuse (4%), forced labor (63%), and organ removal (82%).
According to Article 23 of the Indian Constitution,
ART 23(1): Human trafficking and forced labor are forbidden, and any violation of this rule is punishable by law.
The following activities are expressly prohibited by Article 23:
- Begar: This is a form of forced labor that entails involuntary work for no pay. In other words, a person may be forced to function against his will without being compensated for it.
- Bonded Labor/Debt Bondage: Article 23 forbids bonded labor because it is considered a form of forced labor. This is a practice in which a person is compelled to work to repay a debt. They are paid very little, but the amount of work they do is doubled. These debts are frequently passed down through the generations. As a result, it is classified as a form of forced labor.
- Human trafficking: It refers to the sale and purchase of a human being as a commodity, and involves the unethical trafficking of women and children. Slavery is not specifically stated in Article 23, but it is included in the definition of "human trafficking." Women's trafficking has evolved into a modern form of slavery for immoral purposes such as prostitution, menial labor, and so on.
- Other forms of forced labor: Any other practice which comes under Article 23 is also prohibited by this Article.
ART 23(2): As held in the case of Somawanti vs. the State of Punjab, this article is an exception to article 23. Nothing in this article prevents the State from enforcing compulsory service for public purposes, and the State must not discriminate based on religion, race, caste, class, or any combination of these factors, in imposing such service.
- Can compel a government employee not to retire if a departmental investigation is still ongoing even after he has reached retirement age, as held in the case of Partap Singh vs State of Punjab by The Supreme Court.
- Can compel farmers to bring food grains to the Government godown with no remuneration for labor if it is pronounced as an essential commodity, as held in Acharaj Singh vs. the State of Bihar by Patna HC
- Can compel an individual to perform social service and work for the betterment and upliftment of society, as given by the National Service Act, 1972, as decided by the Himachal Pradesh High Court in the case of State vs. Jorawar.
- In the case of the State of Gujarat vs. the High Court of Gujarat, the SC held that a prisoner enduring harsh incarceration may be forced to do hard labor in exchange for the minimum wage.
Some important judgments of Article 23 are:
- In the case of People’s Union of Democratic Rights vs. Union of India6, the Supreme Court interpreted the ambit of Article 23. Bhagwati J. held that “Article 23 has a wide and unrestricted scope. This Article prohibits more than just the word "begar." This article condemns forced labor in any form because it degrades human dignity and goes against basic human values. Furthermore, no one shall be compelled to provide labor or services against his will, even if it is stated in a service contract.” The Court further determined that “the compulsion of economic circumstance that leaves a person in need with no option but to provide labor or service” was no less a form of forced labor than any other, and that the only solution was a statutory guarantee of the minimum wage.
- In DulalSamanta vs. District Magistrate7, the Calcutta High Court held that when interpreting the phrase "other similar types of forced labor" under Article 23(1) of the Constitution, it should be understood using the doctrine of "Ejusdem Generis," which means "it has to be something of the nature of either human trafficking or beggar." The word "forced labor" in this expression can be interpreted in a wide range of ways. The act of "unlawfully compelling any person to labor against the will of that person" is punishable under Section 374 of the IPC.
- In Sanjit Roy v. the State of Rajasthan8, the State used the Famine Relief Act to hire people for specific jobs. The people were seriously affected by the drought, so the government hired them. However, these people were paying much less than the minimum wage, claiming that the money was provided to assist them in surviving the famine. According to Bhagwati J., "paying wages less than the minimum wage to an individual working in Famine Relief Work is a violation of Article 23." The state is not permitted to take advantage of such people's helplessness under the guise of assisting them in dealing with famine or drought.”
- In Deena vs Union of India9, it was held by Chandarchud C. J. that compelling a prisoner to provide labor without remuneration is considered forced labor and violates Article 23 of the Indian Constitution. The prisoners are therefore entitled to earn equal pay for the job they do, according to the court.
- In S. Vasudevan vs. S.D. Mital10, a Division Bench of the Bombay High Court approved this definition of the term begar. 'Begar' is thus a kind of enslavement. Not only is 'begar' now unconstitutionally (sic) forbidden by Article 23, but all other forms of forced labor are as well.
The Indian Constitution forbids the work of children under the age of 14 in factories, mines, or any other dangerous occupation. This article is for the benefit of children and ensures that they live a secure and balanced life. Article 39 of the Indian Constitution requires the state to ensure that the health and strength of staff, men and women, and children are not neglected or compelled to participate in dangerous practices that are not appropriate for their age or strength due to economic necessity. Children are a country's future. Every nation has the responsibility to ensure that the future is bright by providing good food, education, and health to the country's children so that they can grow up to be strong enough to do something positive in their lives, which will eventually lead to the nation's growth and development. As a result, Article 24 is read in conjunction with Articles 39(e) and 39(f). This article, however, does not forbid the employment of children in jobs that are both innocent and harmless, such as working in agricultural fields or a grocery store.
In the case of M. C. Mehta vs. State of Tamil Nadu11, M. C. Mehta, a public advocate, filed a PIL under Article 32, in which he told the court about how children are employed in Sivakasi Cracker Factories. It was held by Hansaria J. that- “Children under the age of 14 cannot be engaged in hazardous activities, and the state must provide certain rules to protect the social, economic, and humanitarian rights of children who operate illegally in the public and private sectors. It also violates Article 24, since it is the state's responsibility to provide them with free and compulsory education. It was also ordered to set up a Child Labor Rehabilitation Welfare Fund and pay each child Rs. 20,000 in compensation.”
A variety of steps have been taken, various practices have been implemented, and numerous laws have been enacted to protect people from exploitation. Even though the state should work for their betterment, we are still seeing an increasing number of these heinous crimes. Men, women, and children are now abused in the same way they were before. The Right to be Free from Exploitation seems to be being exploited. As a result, authorities must make every effort to faithfully enforce these rules, stringent steps must be taken, and wrongdoers must not be allowed to go unpunished. For example, many Bangladeshi and Nepali migrants are forced to work in India's brick kilns, carpet weaving, embroidery, and other industries. This is, in reality, called recruitment by deception and debt bondage. Such coercion and recruitment must be eliminated.
There are a lot of loopholes in the Indian constitution. First, the terms like ‘begar’, and ‘exploitation’ etc have not been clearly defined. Secondly, trafficking has been prohibited but prostitution has not been outlawed. Thirdly, the children below the age of 14 are still employed in garages, hotels, restaurants, and other tedious jobs that have not been outlawed. Due to man-made poverty, a large number of children are deprived of their right to education and their basic fundamental rights. Fourthly, the laborers to escape starvation, tend to work with nominal remuneration.
The eminent political scientist Harold J. Laski once said, "A society divided between rich and poor is like a house divided against itself." With time, the chasm is widening in our land. Despite many Five-Year Plans, millions of people continue to live below the poverty line. Of course, there are certain constitutional protections, but still the poor are being exploited.
Exploitation is a very big problem around the world and especially in India. The stark reality is that people are being exploited in numerous ways and in a horrible manner. Even though there are so many provisions in the Constitution for safeguarding the rights of people and children against exploitation, laborers, women, and children are being exploited as before. As a result of the above, it can be concluded that the Right against Exploitation has so far struggled to achieve its goal and had little effect. The lack of an efficient implementation is the primary cause of this failure. Another factor contributing to this is the slow justice system. Cases in the subordinate courts take an average of six years to resolve. It is extremely difficult to seek justice in such a scheme, and as a result, criminals can get away with little difficulty. Despite numerous enactments and legislations for banning the employment of children in hazardous industries and workplaces, child labor is a dark truth.
Child labor is a national blight and one of the most heinous and inhuman practices that jeopardize the health and development of both children and the entire country. According to surveys, India still has nearly 30 million child laborers. These are truly frightening figures. It is past time for the government's three institutions to step up and actively participate in the abolition of child labor, as well as prosecute criminals.
- The constitution of India by P.M Bakshi.
- DD Basu: Commentary on the Constitution of India, 9th in, Vol 5, Articles 20 – 25
- AIR 1963 SC 151
- AIR 1982 SC 1943
- AIR 1958 Cal 365
- AIR 1983 SC 328
- AIR 1983 SC 1155
- AIR 1962 BOM 53
- AIR 1997 SC 669