Before India got independence, our Indian society mollycoddled the caste system and entertained evil social practice, the significance of which is still somehow fresh in independent India.People abhor lower caste people, tender them to be unmerited people and fit for no work, the only work they can do is either as a labourer or a slave of someone. they do not get any chance of better employment to represent them in a proper platform to enhance the obscure status of their caste. Results of this pretentious noble people exploit them for their misdeeds and for-profit, in modern days traffic of humans especially of women and children showed to be the reclining reason for exploitation in the form of prostitution, bonded labour & begar. Although the need to maintain balance in society was observed by the Constitutional framers prematurely, made a solution according to the prevailing condition of social order. To avoid evil practices and to secure the dignity of life and the happy living of every citizen, incorporation of Article 23& 24 makes better annotation.
Historical Background of Article 23
When the drafting committee drafted the constitution, in their drafts, Ambedkar, KT Shah & KM Munshi, mentioned the provision of Article 23. However, the draft of Article 23 of B.R Ambedkar provides only forced labour and or involuntary servitude is an offence, although KM Munshi draft over this was more elaborative and include all forms of slavery, forced labour and trafficking in human beings, whereas KT Shah also condemn all forms of slavery, but mention State power regarding compulsory services for public purposes.
Later on, the provision was finally drafted by the Sub-committee and its provide trafficking in human beings, slavery, forced labour and any form of involuntary servitude except as a punishment for crime whereof the party shall have been duly of convicted. But did not acclaims the State power of compulsory service any general scheme of education does not fall under this clause.
We bought the concept of slavery and involuntary servitude form the 13th amendment of American Constitution, while the Clause (2) of Article 23 did not have precedents. Although some of the Constitution like Chinese (article 20), Czechoslovakian (article 127 para1) contains the provision of compulsory military services for their citizens.
Again the head of the drafting committee appointed the ad hoc committee, consisting of Mrs Hansa Mehta, Rajagopalachari and Govind Ballabh Pant to consider the matter and prepare the suitable draft. The committee however made some corrections and provided that article 23 prohibits trafficking in human being, slavery, forced labour or any other form, but nothing in this article prevents state for imposing compulsory services for public purposes, and while making it, the state shall not discriminate based on race, caste, religion or any of them. An interesting fact about article 23 was that earlier it was numbered as Article 17, only after in the revision stage it was converted to article 23 from 17.
Prohibition of trafficking in human beings and forced labour- Article 23
In our constitution article 23 prohibits trafficking in human beings or begar and any other such form seems to be forced labour. This article contains two clauses, one which states the point that whosoever is suffering from the system of forced labour and any form of trafficking and exploitation have the right to report the matter in High Court & Supreme Court and get satisfactory remedies.
On the other side, the second clause deals with the exceptions of this law and empower the State, shall have the right to impose compulsory services for public purposes. Provided that by making it, the Government doesn’t discriminate based on race, caste, religion or any of them.
Trafficking in Human Beings
it was held by the court in the case, Raj bahadur v. Legal Remembrance trafficking in human beings means selling and buying men and women like goods and include immoral traffic in women and children for immoral or other purposes although the article 23 has a wider sense of interpretation and inherently talks about the prohibition of slavery. Inclusion of slavery first recognised in the case of Dubar Goala v. Union of India.
moreover, if the person found to be indulged in trafficking, what will be the move of Government?, so under article 35 of Indian Constitution empowers the Parliament to make the punishment for people who violate the article 23 of Indian constitution. And by using this power several good legislation has been brought by the Government, like The Suppression of Immoral Traffic In Women and Girls Act, 1956 now as (Immoral Traffic Prevention Act, 1956) for punishing acts which seem to be trafficking of human beings.
Article 23 also protects the person not only against the state but also from the arbitrary action of individual citizens and make the burden on the State Government, although the positive obligation to eradicate the practice of human trafficking.
Begar and other forms of Forced labour
this act, also prohibited by Article 23 of the Indian constitution. Begar means involuntary work without payment. The main aim of this article is to prohibit the person not to work where he is lawfully entitled not to work, or receive remuneration of service which he renders, hence does not designate forced labour as a criminal offence. But the word begar is on the discretion of interpretation and covers other forms of forced labour, which means to compel a person to work against his will.
In a leading case of Peoples Union for Democratic Rights v. Union of India The Supreme Court rendered the detailed guidelines regarding article 23 and discussed its ambit. And propound that the scope of article 23 is wide and unlimited and strikes at trafficking in human beings and begar and any other form of forced labour.
Another prominent case was the Asiad Games Case, which was the result of Public Interest Litigation addressed to the Justice. PN Bhagwati alleging the violation of labour laws by Union Of India, Delhi Administration and Delhi Development Authority. Wages issue highlighted, paid them less than the minimum wages decided, the question considered whether this type of hitch invoked the article 23?
While delivering the judgement the Court takes cognizance of International Instrument, International Labour Convention, 1929, European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 and the International Convention on Civil and Political Rights, 1966, although Court also considers the two old US peonage Cases –Bailey v. Alabama and Pollock v. Williams, and observed that Article 23 can be invoked in forms of forced labour, begar and any other form.
In Bandhua Mukti Morcha v. Union of India, case PIL was filed for stating the inhuman conditions of labourers in stone quarries of Haryana and also alleged that clear cut violation bonded labour (Abolition) Act, 1976, therefore Court appointed a Commission of two lawyers to check the condition and it was found that the condition was inhuman, they did not have clear water to drink and basic amenities. But the State Government Argued that although it was found to be Forced labour not bounded labour, rejected by the Court and held that aim of article 23 to prohibits the trafficking in human beings, begar and any form of forced labour and it was obvious that forced labour is the form of bonded labour.
In another case of Neeraja Choudhary v. State of MP, Supreme Court reaffirms its stand in kind to give the benefit of social welfare legislation through a hefty process of litigation. further observed by the Court that whenever it is revealed that a labourer is sufficed with forced labour, a presumption arises in the Court that he is required to do so in furtherance of the consideration received by him, therefore, fall the purview bonded labourer. Unless the employer or the State Government rebuts the presumption or contrary shown, the court shall presume that the labourer is a bonded labourer entitled to the benefit of a provision of the Act. Although issued direction to the State government to include in the vigilance committee of Social Action for identification, release and rehabilitation of bonded labourers.
Compulsory service for public purposes- Article 23 (2)
Clause 2 of this law contains an exception to the rule mentioned in article 23. Under this clause, the State Government shall have the right to impose compulsory services for public purposes. But to implement this state shall take care that it should not discriminate based on race, caste, religion or any of them, for example, compulsory military service or social services can be imposed because they are neither begar nor trafficking in human beings held by the court in the case of Dulal Samanta v. D.M, Howrah.
Historical Background of Article 24
It was not new that we prohibit the child labour, it was begged log before India got independence, the idea to eradicate child labour and promote universal education for all the children below the age of 14 advocates in 1906 by Gopal Krishna Gokhale, urged the British Government to set up free and compulsory elementary education system but the attempt was unsuccessful, but the movement was continued and brought in Constitution assembly, and it was resolved that Future Constitution of India abolish the child labour and promote the free and compulsory education. The reference was taken from Article 23 para 2 of Yugoslavian. Significantly, the draft prepared by the Drafting Committee contained provisions for the prohibition of child labour and provide free and compulsory education for children.
Article 18 of the Constitution provided a ban on the employment of children below 14 years of age in any factory or mine or engaged in any other hazardous employment, but on the revising stage, it was renumbered as article 24.
Prohibition of Employment of Children in Factories- Article 24
Article 24 cares about the assets of the nation i.e., children. It prohibits the employment of children in factories and hazardous employment, who are below the age of 14 years. This law also reflects the directive principle of state policies, where the provision is certainly in the interest of public health and safety of children. Although article 39 ponders the positive obligation on the State, to maintain public health and hygiene and provide a proper place of working to ensure everyone dignity of life and safety. And also to check the strength of workers, men, women and tender age children are not abused and they were not suppressed by the economic wants, to enter the habit of corruption unsuited to age or strength.
For recognized as a basic right of this law a leading judgment was given in the case of People’s Union for Democratic Rights v. Union of India, in which it was contended that the law of employment of children’s Act, 1938 was not applicable in the employment of industry as it was not specified in the schedule of the children act. However, the Court rejected the contention and propounded that, if the children are engaged in hazardous employment in factories even though not specified, infringes the article 24. Although taking the deep regret of Bhagwati.J., advice the state government to ensure the inclusion of industry employment in the employment of children act, 1938 and to ensure the mandate of Article 24 can not be violated in any part of the country.
In pursuance of the above duty, the Child labour( Prohibition and Regulation) Act was enacted. And this act prohibits the employment of children, who are below the age of 14 years in activities like, railways and other means of transport. Other Acts were also enacted to restrain the employment of children in hazardous activities:
Indian Factories and Mines Act, 1952
Merchant Shipping Act, 1958
Motor Transport Worker Act, 1961
Plantation Labour Act, 1951
Beedi and Cigar Workers Act, 1966
Apprentices Act, 1961
However, the Article does not prohibit the employment of children in any innocent or harmless job or work.
For the employment of children, the Supreme Court put up the utmost care and given the exhaustive guideline in the case of M.C Mehta v. State of Tamil Nadu how the State Authority protects the economic, social and humanitarian rights of millions of children, working illegally in public as well as the private sector. Though article 24 is there to protect the children still 17million children are estimated as working in an organized sector report by the Planning Commission. Thousands of laws enacted by many state assemblies, still this problem is unsolved.
To put this on the right track Court directed to set up Child Labour Rehabilitation Welfare fund and asked the offenders, employers, to pay compensation of 20,000 for each child. And in the case where appropriate jobs are not available for the children, the government would contribute 50,000 in the fund for each child employed in the factory
In defining the hazardous terms, the Court held that it has wide meaning left to interpret according to the needs of the society, as far as non- hazardous activity are concerned its depend on the inspector designated to investigate, whether proper education of 2-4 hours is provided or not and the working hours are not more than for 4-6 hours and cost of education borne by the employer, however, listed some industry which involved in the hazardous activity:
Match Industry in Sivakasi, Tamil Nadu
Diamond Polishing Industry, Surat, Gujrat
Stone Polishing Industry, Jaipur, Rajasthan
Glass Industry, firozabad, Uttar-Pradesh.
Another case of Bandhua Mukti Morcha v. Union of India and Others, Supreme Court given a significant judgement and directed the State Government to recognition release and rehabilitation of child labour has been given, and direct the Central government to set up a meeting draft out the plan with the state government, how to eradicate the employment of children below 14 years of age, consisted with the design laid down in Civil Writ Petition No. 465/86.
Judgement given by the apex court is evolved with time, as what is not included in Hazardous employment came later into it, in case of Bachpan Bachao Andolan v. Union of India The Supreme Court held that the employment of children in circuses also came to hazardous activity and hence it should be banned. Although we have to assert the protection of children and promote universal elementary education, so we have to narrow the scope of employment, so that we can eradicate child labour.
Constitutional framers are well versed with the facts about the Indian society, and to eradicate the evil and ongoing unethical practices they enumerated Article 23 & 24 for the welfare of lower masses, who were exploited by the people of higher social order. Later on, it’s incumbent on the State Authority to check whether these activities should not be taken place, and if it is, then corrective measures should be taken.
1.AIR 1953 cal. 552
2.AIR 1953 cal. 496
3.AIR 1982 SC 1943
4. P.U.D.R (n 1).
5. AIR 1984 SC 820
6.AIR 1983 Ker 261
7.AIR 1958 cal. 365
8.AIR 1983 SC 1473
9.AIR 1977 SC 699.
10.AIR 1997 SC 2218
11.Writ Petition (C) No.51 OF 2006 Judgment delivered on 18 April, 2011.
BY- Akash Goswami
Aligarh Muslim University