This article is wrtten by Neha Gururani, a student of Guru Gobind Singh Indraprastha University, New Delhi. In this article, she has discussed the Right against Exploitation and the related provisions of the Indian Constitution, the issue of child labour and the various legislations for the protection of child rights.
India is the largest democracy in the world today. This track of progress and development has a great struggle concealed behind it. India has been a victim of slavery since centuries altogether. It took several centuries to get India free from slavery and finally after the enactment of the Indian Penal Code, 1860, slavery was completely abolished in India. The framers of the Indian Constitution through Article 23 and 24 expunged such practices. The Constitution of India guarantees liberty and dignity to every individual, hence, leaving no scope for exploitation, slavery and ill-treatment.
Exploitation means the misuse of services rendered by others with the help of force. The practice of exploitation violates the basic concept of the Indian Constitution, the Preamble and opposes the Directive Principle of State Policy given under Article 39 of the Indian Constitution which stimulates economic equality among the individuals.
Article 23- Prohibition of ‘Traffic in Human Beings’ and Forced Labour
Article 23 of the Indian Constitution expressly prohibits human trafficking, forced labour and other similar activities. It also states that any violation of this provision will be considered as an offence and the person acting in contravention of the law will be penalized in accordance with the law.
Features of Article 23
It has certain features which every individual should be aware of –
- Right against exploitation is prescribed as a fundamental right of the individuals under Article 23 of the Indian Constitution.
- It protects both the citizens and the non-citizens against exploitation.
- It protects individuals against the State as well as private citizens.
- Article 35 authorises Parliament to make laws for punishing the acts which are prohibited under Article 23.
This article imposes a positive obligation on the State to abolish immoral practices of exploitation like human trafficking and other forms of forced labour.
Practices prohibited by Article 23
Article 23 explicitly prohibits the following discussed practices:
- Begar: This is a form of forced labour which means involuntary work without any remuneration. In other words, it can be said that a person is compelled to work against his will without being paid for it.
- Bonded Labour/ Debt Bondage: Article 23 prohibits bonded labour as it is a form of forced labour as per this article. This is a practice under which a person is forced to work to pay off his debt. The money they get is very little and the work they do gets doubled. Often these debts get passed over to the next generations. Hence, it is known as a form of forced labour.
- Human trafficking: It means selling and buying of a human being like goods and includes immoral trafficking of women and children. Although, slavery is not expressly mentioned under Article 23 but it is included within the meaning of ‘traffic in human beings’. In pursuance of Article 23, Parliament has passed the Suppression of Immoral Traffic in Women and Girls Act, 1956, for punishing human trafficking.
- Other forms of forced labour: Any other practice which comes under Article 23 is also prohibited by this Article.
An Exception to Article 23
Under clause (2) of Article 23, the State is allowed to impose compulsory services for public purposes like national defence, removal of illiteracy and other public utility services (electricity, water, air and rail services, postal services, etc.) provided that in making any such service compulsory for public purposes, the State, however, cannot make discrimination on the basis of religion, race, caste or class or any of them.
Some of the important cases pertaining to Article 23 are briefly discussed as follows –
- In the case of People’s Union for Democratic Rights v. Union of India, the Supreme Court interpreted the ambit of Article 23. Bhagwati J. held as follows-
“The scope of Article 23 is vast and unlimited. It is not merely ‘begar’ which is prohibited under this Article. This Article strikes at forced labour in whichever form it may exist as it violates human dignity and opposes the basic human values. Hence, every form of forced labour is prohibited by Article 23 without considering whether forced labour is being paid or not. Also, no person shall be forced to provide labour or services against his will even if it is mentioned under a contract of service. The word ‘force’ has a very wide meaning under Article 23. It not only includes physical or legal force but also recognizes economic circumstances which compel a person to work against his will on less than minimum wage. It was directed by the court to Government to take necessary steps punishing the violation of the fundamental rights of the citizens guaranteed under Article 23 by private individuals.”
- In Sanjit Roy v. State of Rajasthan, the State employed people for certain work under the Famine Relief Act. The people were badly hit by famine, thus the State employed them. However, these people were paid even below the minimum wages on the ground that the money is given to help them in meeting the famine situation. Bhagwati J. held that-
“The payment of wages lower than the minimum wage to a person employed in Famine Relief Work is violative under Article 23. The State is not allowed to take undue advantage of the helplessness of such people with an excuse of helping them to meet the situation of famine or drought.”
- In Deena v. Union of India, it was held by Chandarchud C. J. that-
“The labours taken from the prisoners without paying remuneration was ‘forced labour’ and violative of Article 23 of the Constitution. The prisoners are entitled to payment of reasonable wages for the work taken from them and the Court is under a duty to enforce their claim.”
Article 24- Prohibition of Employment of children in factories, etc.
Article 24 of the Indian Constitution prohibits the employment of children below the age of 14 years in factories, mines or any other hazardous employment. This Article is for the welfare of the children and ensures a safe and healthy life of children. Article 39 of the Indian Constitution imposes an obligation on the State to ensure the health and strength of the workers, men and women and children are not abused and forced by economic necessity to get engaged in hazardous activities which do not suit their age or strength.
Children are the future of a nation. It is the duty of every nation to make sure that the future is bright by providing good food, education and health to the children of the country so that they can become strong enough to do something good in their life which will ultimately contribute to the progress and development of the nation. That is why Article 24 is read with Art. 39(e) and Art. 39(f).
However, this Article does not prohibit the employment of children in innocent and harmless jobs or work like working in agricultural fields, grocery shop, etc.
Features of Article 24
- This Article prohibits the employment of children below 14 years of age in hazardous work.
- This Article is read with Article 39(e) and (f).
- It ensures safety and healthy life of children.
- It imposes a duty on the State to ensure that children are not abused and forced to work in harmful places because of financial problems through Article 39.
- It doesn’t prohibit the employment of children in harmless work.
Following are some of the case laws with respect to Article 24 –
- In People’s Union for Democratic Rights v. Union of India, some people including few children below the age of 14 were employed in the construction work of the Asiad Project in Delhi. It was contended that the Employment of Children Act, 1938 was not applicable in the case of children employed in construction work since construction industries were not specified in the schedule of the Children Act. Bhagwati J. held that-
“The contention given by the Government is not at all acceptable. The construction work is hazardous employment and therefore, the children below 14 years must not be employed in the construction work even if the construction work is not specifically mentioned under the schedule of the Employment of Children Act, 1938. The State Government is advised to take immediate necessary steps in order to include the construction work in the schedule of the Act and to ensure that Article 24 is not violated on any part of the country.”
- In the case of M. C. Mehta v. State of Tamil Nadu, a public lawyer M. C. Mehta filed a PIL under Article 32 and informed the court about how the children are engaged in Sivakasi Cracker Factories. Although the Constitution prohibits exploitation and employment of children under Article 24, it also directs the State to provide free and compulsory education to them under Article 41 and still there exists a large number of children working in hazardous places. Despite the Constitutional provisions and various enactments passed by many State Governments prohibiting child labour, the issue of child labour has remained unsolved and is becoming a menace to society day by day. It was held by Hansaria J. that-
“The children below 14 years cannot be employed in hazardous activities and state must lay down certain guidelines in order to prevent social, economic and humanitarian rights of such children working illegally in public and private sector. Also, it is violative of Article 24 and it is the duty of the state to ensure free and compulsory education to them. It was further directed to establish Child Labour Rehabilitation Welfare Fund and to pay compensation of Rs. 20,000 to each child.”
Legislations for Protection of Child Rights
To accomplish the obligations carried by Article 24 and in certain international instruments like the UN Convention on the Rights of the Child , the Parliament of India enacted some acts for the welfare and prosperity of children.
- The Employment of Children Act, 1938: This Act prohibits the employment of children below the age of 14 in the railways and other means of transport.
- The Child Labour (Prohibition and Regulation) Act, 1986: This Act prohibits the engagement of children in certain employments and regulates the condition of employment of children where they are not prohibited to work.
- The Mines Act, 1952: This Act explicitly mentions that a person working in the mine should not be less than 18 years. Thus, prohibiting employment of children in mines.
- The Factories Act, 1948: It prohibits the employment of children below 14 years in factories. This Act prescribes certain restrictions and proper procedure for employing children above the age of 14 years.
- The Plantation Labour Act, 1951: This Act fixes the minimum age of employment as 12 years and further lays down provision for periodical fitness checkup for children above 12 years who are employed.
- The Motor Transport Workers Act, 1961: This Act prohibits the employment of children under the age of 15 years in the motor transport sector.
- The Apprentices Act, 1961: This Act prohibits the children below 14 years to undergo apprenticeship training.
- The Beedi and Cigar Workers (Condition of Employment) Act, 1966: It prohibits the employment of children below 14 years of age in any industrial premises manufacturing bidis and cigars.
In addition to these legislations, there are many committees and commissions established across the country to look into the matter of child labour. Moreover, many NGOs are also working for the welfare of the children. Numerous rehabilitation centres have been instituted which are giving a new shape to the life of children who have been terribly exploited because of child labour.
India being a member of the United Nations, has ratified many international conventions like International Labour Organization Conventions in order to safeguard the rights of the child.
Establishment of NCPCR
The National Commission for the Protection of Child Rights (NCPCR) is an Indian Government Commission established in 2007 under the Commission for Protection of Child Rights Act, 2005. The objective of this statutory body is to ensure all the laws, policies, programmes and administrative mechanisms are in accordance with the provisions of child rights enshrined under the Indian Constitution and the UN Convention on the Rights of the Child. This commission is installed at both the Centre and the State levels. It also works for speedy trials of the Children’s Court in case of offences against them or any violation of the child’s right.
Since the genesis of civilization, the stronger has dominated and exploited the weaker. In such a scenario, it is the need of the hour to protect the weaker from such exploitation and provide them with equal opportunities in every field to empower themselves. Moreover, child labour is a crime which is prevailing in the society as a malediction. It is an obstacle hindering the development and growth of the country. Healthy children lead to the bright future of a country. Child labour is blemishing, vandalizing and devastating the future of the children and eventually proves to be a curb in the progress of the country. Hence, proper implementation of the laws is an absolute necessity.
- AIR 1982 SC 1943
- AIR 1983 SC 328
- AIR 1983 SC 1155
- AIR 1983 SC 1473
- AIR 1997 SC 669
- The Constitution of India by P. M. Bakshi