September 24, 2021

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Constitution exploitation and juridical concern : an evaluation

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The article is written by Nikhil Thakur from Manav Rachna University. In this article, the author has attempted to explain in detail the Constitutional exploitation and juridical concern attached to it.

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The Constitution of India has acknowledged a democratic welfare state on the principles of equity, liberty and justice in favour of those people who had been traditionally subjugated and deprived of their rights. These above-mentioned principles could not have become a reality if they were not enshrined within the purview of Part III (fundamental rights) of the Indian Constitution.

The Indian Constitution following Articles 23 and 24, symbolizes its determination to safeguard humans and its citizens from any sort of exploitation. In the above-mentioned Articles, every individual irrespective of his sex, race, age, caste and so on are guaranteed the right against exploitation and ensured the dignity of the individual. 

Exploitation

The phrase exploitation has been borrowed from the French word “exploitation”. Exploitation refers to depriving a person of his/her rights by the method of fraud, misrepresentation, force etc. if any person is denied of his/her share, compensation, remuneration and so on for the work executed or performed shall amount to exploitation. According to Merriam-Webster, exploitation refers to an act of exploiting.

Basically, exploitation refers to an act of taking unfair advantage of a person on the grounds of his/her inferior status. Thus, in exploitation certain classes of people are treated unfairly for the benefit of others. Here, the inferiors are treated not as a human rather as an object.

Exploitation has been prevalent in all societies around the world since time immemorial. In the ancient period, the practice of slavery, devadasi, forced labour and so on were prevalent.

Human trafficking

According to United Nations Office on Drugs and Crime, human trafficking means and include transportation, recruitment, harbouring of people with the help of force, fraud and deception, with the prime objective of exploitation. Anyone can be a victim of human trafficking, generally, women and children are mostly trafficked.

Human trafficking refers to an act of transferring and transporting people to get benefits from their services or body, generally in form of sexual exploitation. It is one of the major problems around the globe where humans are exploited.

Ingredients of human trafficking are:

  1. Buying and selling of living /conscious human beings,
  2. Prostitution, sexual exploitation in women and children,
  3. Devadasis, and
  4. Slavery.

Bonded labour/ Forced labour

According to the Forced Labour Convention, 1930 forced labour means an involuntary act or work performed under the threat of penalty. In this, the inferior labourers are subjected to cruel and unending exploitation by the superior. 

According to Merriam-Webster, forced labour refers to performing physical hard work under pressure or force. Bonded Labor or Forced labour can be said as another form of slavery because slavery is uncivilized while bonded labour is a civilized form of slavery.

Begar

Begar is another form of exploitation among humans. Basically, it means forcing someone to work without any money, remuneration etc. According to Merriam-Webster, begar is nothing but forced labour.

Ingredients of begar:

  1. Forced labour for which remuneration is not given; or
  2. Forced labour for which remuneration is allowed but is insufficient.

Government’s initiative to curb exploitation

The Indian legislature has enacted a plethora of legislation in order to control the practice of exploitation such as:

  1. The Indian Penal Code, 1860
  2. The Equal Remuneration Act, 1976
  3. The Minimum Wages Act, 1948
  4. The Protection of Children from Sexual Offence Act, 2012
  5. The Juvenile Justice Act, 2015
  6. The Bonded Labour (Abolition) Act, 1976
  7. The Immoral Traffic (Prevention) Act, 1956
  8. The Child Labour (Prohibition and Regulation) Act, 1986

These above-mentioned laws specifically contain provisions as to the protection of victims against the practice of exploitation. Despite having so many laws concerning the protection of individuals from exploitation still, there are a plethora of cases of exploitation in our society. Hence, it is the judiciary that has taken corrective steps and measures in tackling the menace of exploitation in India.

Article 23 of the Indian Constitution, explicitly deals with the prohibition of traffic in human beings and forced labour. Article 23 prohibits:

  1. Human trafficking,
  2. Begar/ Forced labour, and
  3. Other similar types of offences.

The right not to be exploited is available to both the citizens as well as non-citizens. Article 23 ensures protection to an individual from the state as well as the private individuals.

Following the case of the State of Gujarat v. Hon’ble High Court of Gujarat (1998), the Hon’ble Supreme Court of India observed that Articles 23 and 24 of the Indian Constitution are the only Articles that come under the purview of “right against exploitation”. Further, the court stated that human trafficking is explicitly prohibited while forced labour is not absolutely prohibited, indeed, it is subjected to only one exception that is compulsory services.

As per Article 23(2), the state is empowered or permitted to impose compulsory services on an individual or group of individuals in the interest of the public. Here, the state is not bound to pay any form of salary, wage and remuneration. Further, while imposing the compulsory services, the state shall not discriminate merely on the grounds of:

  1. Religion,
  2. Race,
  3. Caste,
  4. Class,
  5. Or any of them.

To ensure constitutional protections against human trafficking in India, the government following Article 35 of the Indian Constitution has enacted the Suppression of Immoral Traffic in Women and Girl Act, 1956.

In Chandra v. State of Rajasthan (1959), the sarpanch of the village asked every villager to send at least one member from their house to render free services to build the village tank. The matter went to the Rajasthan High Court, and it was held that the order of the sarpanch was against Article 23(1) of the Indian Constitution.

In Suraj Narayan v. State of Madhya Pradesh (1960), the Hon’ble Court observed that non-payment of salary to the worker on the account of unsatisfactory work shall amount to a violation of Article 23 and shall also amount to practice of begar.

An interesting Manipur custom comes to notice in the Ruiweinao Khaosan Tangkhul v. Ruiweinao Sumirei Shailei Khulla Kpa (1961), in this case, there was a custom in Manipur that each of the householders in the village had to provide free services to the headman of that village for one day. But, the appellant refused to give such free services on the ground that it is a violation of Article 23 of the Indian Constitution and amounts to begar. Finally, it was decided that the said Manipur custom is against and violative of Article 23(1) of the Indian Constitution.

A landmark judgment concerning the exploitation was observed in the case of People’s Union for Democratic Rights v. Union of India (1982), in the said case, workers were not given minimum wages for the work performed and in response the workers challenged the same in Supreme Court on the grounds of violation of Article 23 of the Indian Constitution.

The Supreme Court held that Article 23 is a general prohibition, total in its effect and pervasive in its range. Further, the court said that if there is any worker who is working under pressure or force irrespective of the fact he is paid or not shall also amount to forced labour and is prohibited. And any person who is working below the minimum wage shall be considered as working under some kind of pressure or compulsion.

Based on the judgment pronounced in People’s Union for Democratic Rights v. Union of India, 1982, the Hon’ble Court in Sanjit Roy v. the State of Rajasthan (1983), held the Rajasthan Famine Relief Works Employees Act, 1964 as invalid because the said act exempted the application of  Minimum Wages Act, 1948.

Another landmark case was Bandhua Mukti Morcha v. Union of India (1984), the Supreme Court said that the Bonded Labour (Abolition) Act, 1976 recognizes forced labour as bonded labour, and the said Act aims to prohibit forced labour. Further, the court said that if anyone is working under force or pressure, it shall be presumed that such person is working in consideration of advance or economic conditions.

Moreover, the Hon’ble Supreme Court directed the central and state government to ensure proper implementation of the Mines Act, 1952, Maternity Benefit Act, 1961, Abolition of Bonded Labour Act, 1976 etc. 

In 2011, in the case of State of U.P v. Madhav Prasad Sharma (2011), the court was of the opinion that denial of salary on the grounds of no work shall not amount to begar within the purview of Article 23 of the Indian Constitution.

Article 24 of the Indian Constitution explicitly forbids the employment of minors below the age of 14 years in factories, mines and any other hazardous activities. The said provision is made in the interest of children’s health and compliance with Article 39(e) and (f) of the Indian Constitution.

An important Act concerning the prohibition of employment of the child in factories is the Child Labour (Prohibition and Regulation) Act, 1986 which is renamed as the Child Labour and Adolescent Labour (Prohibition and Regulation) Act, 1986

The Commission for the Protection of Child Rights Act, 2005 recommended the establishment of the National Commission for the Protection of Child Rights (NCPCR), the State Commission for the Protection of Child Rights (SCPCR) and the Children’s Court for speedy disposal of the cases.

In M.C Mehta v. The State of Tamil Nadu (1996), in response to the widespread menace of child labour, the Supreme Court observed that no child below the age of 14 years shall be employed in the match industry in Sivakasi. Further, the court emphasised the education of children and the establishment of the child labour rehabilitation welfare fund.

On the 10th of October, 2006, the Indian Government banned the employment of children below the age of 14 as home servants and in business (factory, shop, dhaba, restaurant, etc.). Anyone who violates these shall be penalised under the Child Labour and Adolescent Labour (Prohibition and Regulation) Act, 1986.

There are a plethora of Conventions, Declarations and International Treaties around the globe that seek to prevent exploitation and ensure dignity to humankind.

  1. Paris Congress 1906,
  2. The International Agreement for the Suppression of White Slave Traffic, 1904,
  3. International Convention for the Suppression of the White Slave Traffic, 1910,
  4. International Conventions for the Suppression of the Traffic in Women and Children, 1921,
  5. The International Convention for the Suppression of the Traffic in Women of Full Age, 1933,
  6. Universal Declaration of Human Rights (UDHR), 1948,
  7. The United Nation Convention Against Transnational Organized Crime, 2000,
  8. Protocol to Prevent, Suppress, and Punish Trafficking in Persons Especially Women and Children, 2000,
  9. SAARC Convention on Preventing and Combating Trafficking in Women and Children for Prostitution, 2002,
  10. Slavery Convention, 1926

Articles 23 and 24 of the Indian Constitution ensure or guarantee the right against exploitation. These Articles explicitly prohibits the practice of exploitation, human trafficking, begar, forced labour and child labour. Since time immemorial, India has been popular for its unequal society and exploitation of the weaker section by those in power. The existence of these practises despite having so many legislations, is a blot on a civilised society. Therefore, concrete actions along with awareness among the public at large are important.

Despite all the odds, the Indian Judiciary has played an important role in ensuring and safeguarding the rights of the victims, bonded labourers and child labourers. In ensuring these rights, Public Interest Litigation has been a remedy to all vulnerable persons.


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