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Khyati Tongia

Evolution of the Right Against Exploitation

INTRODUCTION

The exploitation of any form is undesirable and unwanted. When a human is bonded, then the values of humanity are on the line. It is a detestable and unacceptable practice that is also banned worldwide, and laws are made internationally to punish the offenders. In the Indian context too, Articles 23 and 24 give the people a right to speak, act and punish against exploitation be it against adults or children. The importance of this right can be ascertained by its presence in Part III of the Indian Constitution, i.e. the Fundamental Rights. 

Strangely, these rights find the establishment of their reality as a purpose behind the poor economic conditions of people. However, in a bigger picture, these rights as opposed to being economically driven rights are societal-welfare driven rights. There are endless causes of such conditioning, but one which is the most significant catalyst is a classist mind. This gap in social structure makes one think that he is on a higher platform, and the bonded person is on a lower one. He creates this ruthless social hierarchy in his mind and considers his actions of oppression as a right which he has inherited from his class. To make society liberated from any kind of discrimination in light of a capacity to dominate as to make individuals work for them by misusing their helplessness is something which needs an end. In this way, it is to make society a better place where there are pride, and dignity and no human is exposed because of his vulnerability.

 

ARTICLE 23 & IT’S EVOLUTION : 

ARTICLE 23(1) states that, ‘Trafficking in human beings, begar and other similar forms of forced labor are prohibited, and any contravention of this provision shall be an offence punishable in accordance with the law.[1] 

 

The lawmakers rather than using the word “slavery” and restricting the scope of the article, used words like “begar” to present the circumstances where a person is made to work involuntarily without his pay. Similarly, trafficking in humans means when a person is being sold and purchased like an object for immoral and unlawful activities. Lastly, bonded labour is a kind of forced labour which means conditions, when a person is compelled to work to repay loans, is also prohibited.

With the constant evolution of the Constitution and its dynamic nature is its heart and soul, the above-mentioned Article 23 scope has widened. Being a provision of imposing responsibility on the State to ensure that such heinous kinds of exploitation end, the judiciary has taken a step ahead and following the light of International Labor Organizations, International Covenant of Civil and Political Rights delivered some landmark judgements in this spectrum. The courts have concentrated on various courses through which force can be utilized by it a physical compulsion, hunger, helplessness, or economic circumstances. In every one of these conditions, an individual does not have a choice but to take any available work, thus leading to more violations and the highlighting the dire need of application of Article 23. 

 

In Asiad Games Case, [2] the question under the steady gaze of the Supreme Court was whether Article 23 could be made appropriate to a condition where laborers are not paid the minimum wages that have been decided by the government. It was held that even if laborer’s join work voluntarily but are not paid the minimum wages, it qualifies as forced labor under Article 23. Even during imprisonment, the detainees are made to work in the jail, and they should be paid wages at the sensible rate. The wages ought not to be underneath minimum wages. 

 

Recently, the Court, among other things held that retaining payments of salaries of the professors would add up to beggar, which is an infringement of Article 23 of the constitution. Thus, the university was ordered to pay petitioner's  payments of arrears in salaries failing of which criminal action would be made against them.[3]

 

Article 23(2) states that nothing in this article shall prevent the State from imposing compulsory service for public purposes, 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.[4]

 

Clause (2) is an exception to clause (1) which has been very well accepted and implemented. It is because being a welfare state; there are circumstances where public welfare gets the upper hand against the individual. Thus, following the same guideline, the court in Devendra Nath Gupta v. State of M.P held that the service required to be rendered by the teachers towards educational survey, family planning, preparation of voters list, general elections, etc. was for a public purpose. Therefore even if no compensation was paid, that did not contravene Article 23.[5] Similarly in 'Dulai Shamanta v. District Magistrate, Howrah' held that the state is not prevented from imposing compulsory service for a public purpose such as conscription for police or military services as this services is neither begar nor trafficking human beings and not hit by Article 23 of the constitution.[6]

 

Apart from the power of the judiciary to widen the scope of the article, the Constitution under Article 35 gave power to lawmakers to enact laws to punish any offender of Article 23. Using this power, the lawmakers did enact the Suppression of Immoral Traffic in Women and Girls Act, 1956 and Bonded Labor System (Abolition) Act, 1976 to reach the end of this menace. In 2013, the Criminal Law (Amendment) Act introduced Sections 370 and 370A into the Indian Penal Code (IPC), which criminalized anyone involved in the process of trafficking someone — including recruiting, transporting and transfers, by any means. 

Thus, all these acts and amendments have widened the array of the extent of Article 23. 

 

ARTICLE 24 & IT’S EVOLUTION : 

ARTICLE 24 states that No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.[7]

 

Although it prohibits work just in factories, mines, or any other hazardous employment environments, it is significant for the enhancement and assurance of a child who may be abused if not because of this article. Bachpan Bachao Andolan, founded by Nobel Peace Laureate Kailash Satyarthi, has rescued 90,138 children till date.[8] It is not only the government which has the primary duty to protect children; all the stakeholders of the society have a responsibility to do whatever is in their hands to end this plague. 

 

It is the judiciary which expanded the scope of the subjective term “other hazardous places of employment” through its judgements. Starting from the 'People's Union for Democratic Rights and Others v. Union of India', popularly known as the Asiad Project Case, where it was held that construction work is included in the hazardous occupations. Consequently, there can be no doubt that regardless of whether the construction industry is not referenced as hazardous activity in the schedule to the employment of children act, 1938, no child underneath fourteen years can be utilized in the development work. [9] In 'Rajangam, Secretary, District Beedi Workers Union v. State of Tamil Nadu' [10], the Supreme Court observed that tobacco manufacturing was certainly an unsafe occupation to the health of children. As far as possible, the children in this avocation should be banned. Similarly, the working of children in the circus has also been prohibited. 

 

Article 39 of the Constitution expresses that it is the obligation of the state to guarantee that the youth is not constrained by the monetary need to go into fields of work where they are compelled to give work which is unacceptable to their age and quality.[11]

Following the light of this article, various legislation has been passed to ensure the prohibition of employment of children. The Child Labour (Prohibition and Regulation) Act, 1986, which prohibits the employment of children in 13 occupations and 57 processes. Child Labour (Prohibition and Regulation) Amendment Act, 2016 based on age, i.e. children (under 14 years) and adolescents (under 18 years) divided the occupations where their engagement is prohibited and made the punishments stricter. The Factories Act, 1948, The Mines Act of 1952 also prohibits the employment of children. Even in 2017, India also ratified the two Core Conventions of the International Labor Organization (ILO) related to child labor and its worst forms. 

 

ISSUES IN IMPLEMENTING ARTICLE 23 AND 24

These articles are important in nature, but they fail in solving the purpose for the reason that they were inculcated. The reason being, though the bonded labor or the child is rescued from any kind of forced labor or any hazardous employment but then what? The responsibility that lies on the state and its officials is to ensure rehabilitation and to become the link to provide with all the amenities and support assured by the legislations and the government. But there is a considerable gap. The case being that financial assistance is received only after conviction, and to ensure that the person who is rescued remains for the whole trial procedure without the fear of being backlashed by the rich and resourceful people is always a miss. NGOs don’t have the resources to see the protection of the laborer’s; the police have no business protecting the accused because their job is to register the case. The state Welfare Department working on this has bureaucratic issues, and they have no time to ensure safety. So, the bonded laborer remains a bonded laborer. [12] The Hon'ble Supreme Court has recognized same in ‘Bandhua Mukti Morcha v. Union of India’, which held that it is insufficient just to identify and discharge bonded workers. It is similarly maybe increasingly, significant that after recognizable proof and discharge, they should be restored, on the grounds that without restoration, they would be driven by destitution, defenselessness, and hopelessness into serfdom by and by. [13]

The country has good procedures for rescuing, but the real issue lies in the procedure “what is to be done after rescuing?” Suppose steps are not taken more judiciously and cautiously. In that case, the bonded laborer’s or the children even after getting rescued will end being exploited by life and the hurdles so forth. 

 

AUTHOR’S OBSERVATION 

Article 23 and Article 24 can never be understood only by way of reading these two articles. It is the interplay of these articles and the statutes that give rise to hope to the people. When the lockdown is lifted, and work resumes be it in factories, industries, agriculture or in the service sector, the employers to cope up with their losses will want to employ labor. Just like the law of demand and supply, when there is high supply the price reduces, similarly in this scenario too, with many people wanting to have work, the price at which they’ll be employed will also fall than what they actually deserve for their work. Vulnerable, desperate, and helpless beings who might not be aware of their rights will be the first victims. Adding to the victim list will be the children who will be dropped from school to support their family in sustaining them. There will be more trafficking of children as to employ them in factories with pitiful wages or even for prostitution. Thus, they will not be only exploited by working but also sexually, physically, and mentally.

With the constant calling of amendment in labor laws might even worsen the already harsh conditions for labors. The only security they had if also taken away would lead to an increase in the rate of exploitation. Thus, to ensure that this does not happen, after the lockdown there is need of-

1. Assessment of laws for the betterment of people. 

2. Inspection of factories frequently and surprisingly to catch if any bonded labor or children below 14 workings somewhere he should not.

3. Increase in resources for rehabilitation after the release of labors.

4. Better regulation of places from where children and humans can be trafficked by monitoring places from where they can be picked like railway or bus stations.

5. More employment opportunities to ensure that they are not exploited because of the lack of employment opportunities.

6. Financial support to people who otherwise might take debt and repay would have to work without wages.

7. Promoting the role of NGO’s and giving them support as to take on their work more effectively.

 

 CONCLUSION

Article 23 and 24 are important for ensuring justice in the society. There has been constant growth and evolution of these articles be it by actions of legislature or judgements by the judiciary. Either way, the Articles are reaching the end for which they were inculcated. But still, the objective is half- achieved. There is a dire need for better functioning of the system, reduction in red-tapism, appropriate hearing of cases and most importantly restoration and rehabilitation of the victims is the matter where all the focus and resources should be provided. If no step is taken there are chances that bonded beings may remain in the shackles of bondage forever.

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(The image of this blog is taken from 'pscnotes.in')

 

[1] Article 23(1), Constitution of India, 1950.

[2] People's Union for Democratic Rights and Others v. Union of India, AIR 1982 SC 1943.

[3] Rekha Singh v. Association of India, 2018 SCC OnLine All 704.

[4] Article 23(2), Constitution of India, 1950.

[5] Devendra Nath Gupta v. The State of M.P, AIR 1983 MP 172.

[6] Dulai Shamanta v. District Magistrate, Howrah, AIR 1958 Cal 365.

[7] Article 24, Constitution of India, 1950.

[8] Bachpan Bachao Andolan, https://bba.org.in/COVID-19/

[9] People's Union for Democratic Rights and Others v. Union of India, AIR 1982 SC 1943.

[10] Rajangam, Secretary, District Beedi Workers Union v. State of Tamil Nadu, (1992) 1 SCC 221

[11] Article 39, Constitution of India, 1950.

[12] Geetika Mantri, It’s 2020, but bonded labour is still a reality in India, The NewsMinute, Jan 28, 2020,  https://www.thenewsminute.com/article/it-s-2020-bonded-labour-still-reality-india-here-s-why-116977

[13] Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802.

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