This article is written by Isha from Bharati Vidyapeeth, New Law College Pune. This article talks about Slavery and Unlawful compulsory labour under IPC.
The term “unlawful compulsory labour” is defined under Section 374 of the Indian Penal Code, 1860 which says whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of a mentioned term which can be extended to one year, or with fine, or both. According to Article 23 of the Indian Constitution, beggary is forced labour is forbidden. It makes the unlawful compulsory labour an offence.
Essential Ingredients of Section 374 are:
- There has to exist a compulsion for labour.
- The compulsion must be illegal.
International Conventions on Forced Labour
Remuneration Conventions, 1951
The remuneration acts are aimed at providing equal salary or wages to the labourers. The term remuneration involves basic minimum wages or necessities. It confers at equal remuneration to the workers without the discrimination of sex or place of birth. It aims at proportional remuneration for balanced work to men and women equally. This act was passed at the 34th International Law Commission (ILC) session where each government party shall attain this objective to legislate domestic legislation, communal bargaining authorizations and make an agreement for wage determination.
Minimum Age Convention, 1973
The convention of minimum wages was approved at the 34th ILC session. It came into force in the year 1976 on 19th June. The ratifying states are needed to adopt a policy intended to eradicate child labour and specify the minimum age for work within their territory. The minimum age shall not be less than 15 years (Article 2) while the limited age for admission to any type of employment or work which by its nature in which it is carried out is likely to harm the health, morals or safety of young men shall not be less than 18 years (Article 3) under minimum age convention act. The minimum age for admission to any type of work or job which by the behaviour or nature of the circumstances in which it is proceeded is likely to damage the health, morals or fairness of young human shall not be less than 18 years.
Right to Organise And Collective Bargaining, 1939
It was adopted at the 32nd ILC session, Geneva. It came into force on 18 July 1951. According to this convention act the workers shall enjoy sufficient protection against acts of anti-union discrimination in respect of their work (Article 2) and against any acts of disturbance by each other or each other’s agents or members in their, functioning, establishment or administration (Article 3).
Forced Labour and Slavery
The difference between slavery and forced labour is a wide concept. Slavery differs from the word forced labour. Slavery is the theme of UN conventions. All types of slavery include forced labour however not all forced labour includes slavery.
Slavery is defined as the status or condition of a person over whom any or all of the powers attaching to the right of ownership are exercised.
The international prohibition on slavery is absolute, without any exception. Slavery is the kind of institution in which the slave master’s exercise of the justice of the ownership wrecks the human character, the person as a bearer of rights diminishes the slave to chattel without rights. Slavery is an absolute concept of ownership. It is a social institution in which the community hires slaves as a separate group of workers without rights and it is extremely unjust to them.
Slavery is a permanent situation. The slave master has full authority over each and every aspect of the life of the slave including whom a slave marries, what they eat and wear, when they sleep, whether they are educated or provided medical treatment, and whether the slave can practice religious function. Traditionally, a slave master can exchange, sell or lend child or adult slaves with impunity. Notions of ownership are complete. Thus, slavery includes much more than simple authority over another person.
Slavery is now restricted all over the world, except in Mali. Although, the practice of slavery is illegal, it continues to exist in several countries where the government chooses to ignore its presence.
The convention of 29 ILO forced labour includes the following definition:
“Forced labour shall mean all work which is exacted from any person under the menace of any penalty and for which the said person has not offered himself willingly.”
Facts and figures
- At every subsequent time an estimated around 40.3 million people are in modern slavery which includes 24.9 million in forced labour and 15.4 million in forced marriage in the year 2017.
- It confers that there are 5.4 victims of modern slavery for subsequent 1,000 people in the world.
- 1 in 4 victims of modern slavery comprises of children.
The endless loop of exploitation
There exist several hundreds of people who persist to suffer as bonded labourers in India. National Crime Records Bureau (NCRB) data conveys that 8,132 reported cases of human trafficking occurred across India in 2016. As is abundantly clear, many such cases go unreported, who continue to work as bonded labourers in India.
An Indian girl named Lalita was taken from her home country to a different nation to work as a domestic servant under an affluent family of America. She was forced to work 18 hours a day and also refrained from going out of the house without the consultation of the owner. She was ill-treated, was served with leftover food and was threatened by her employer.
Domestic slavery is relating home activities particularly vulnerable to exploitation because of unparalleled kind of circumstances or labouring inside the household premises with lack of legal protection.
Such domestic workers perform work such as cleaning,laundry,cooking,baby care etc. The wages or salary paid to them are often very low, frequent delay. Some workers of domestic households may not be even paid at all or only incur ‘payment in kind’ such as accommodation, food or clothes.
How does Domestic slavery occur?
According to The International Labour Organization (ILO) it is estimated that at least 68 million women and men are employed as domestic workers all over the world, excluding children.
Women or females make up the overpower majority of household workers, around 80%. ILO calculated that more girls below the age of 16 are employed in domestic services than in any other associative of child labour.
Some domestic workers are migrant workers from other regions or countries, mainly from villages or rural areas to the city. For many, domestic work is one of the very few options available to empower them to provide for themselves along with their families.
Domestic work is poorly maintained and regulated. Often in many other countries, domestic workers are not considered ‘workers’ but rather as informal ‘helping hand’ and are extracted from national labour regulations.
Often they do not get the privilege of same protections as other workers, such as minimum pay, legal contracts, health care, holidays, social security and maternity benefits. In countries where domestic workers are covered by national labour laws, enforcement is poor and these protections have not been translated into practice.
Effects of unlawful compulsory labour
It affects millions of men, women and children worldwide. It is most frequently found in industries having large number of workers but little regulation. These include:
- Agriculture and fishing;
- Domestic work;
- Construction, mining, quarries and brick kilns;
- Manufacturing, processing and packaging;
- Prostitution and sexual exploitation;
- Market trade and illegal activities.
Women or females are diproportionately affected by forced labour, essatiming for 99% of victims in the commercial sex industry and 58% in other sectors. Forced labour is the most common element of modern slavery. It is the most extreme form of exploitation. Although many people associate forced labour and slavery with physical violence; however, the ways used to force people to work are more insidious and rooted in some cultures. Forced labour often affects the most vulnerable and excluded groups, for example: the Dalits are commonly discriminated against in India. Women and girls are at greater risk than boys and men, and boys account for a quarter of people who do forced labour. Migrant workers are the target because they often do not speak the language, have few friends, have limited rights and depend on their employers.
Forced labour occurs in the context of poverty, lack of sustainable agricultural education, as well as a weak rule of law, corruption and an economy dependent on cheap labour. Each of the elements that we have chosen to analyze on the demand side creates pressure within the market for highly exploitable forms of work or opens spaces in which this work can be exploited. All these dynamics are an integral part of the nature of global supply chains as they are currently constituted. These include:
- CONCENTRATED CORPORATE POWER AND OWNERSHIP- It creates great downward pressure on working conditions, partly by reducing the part of the value available to workers as wages;
- OUTSOURCING- Its fragments responsibility before labour standards and makes oversight and accountability very difficult;
- IRRESPONSIBLE SOURCING PRACTICES- It put heavy cost and time pre-agrarian suppliers, which can lead to risky practices like unauthorised subcontracting;
- GOVERNANCE GAPS- It is intentionally created around and within supply chains, opening up spaces for bad practice.
New criminal offence
The consultation identifies a gap between National Minimum Wages (NMW) criminal sanctions and those of modern slavery crimes. Unscrupulous employers whose crimes against workers fall between these two concepts and are treated inefficiently.
Two options are proposed for a new crime. The first is a custody penalty for employers who have committed a labour law offense within the mandate of the labour market enforcement director (many of these crimes are currently punishable by a fine). This penalty would be imposed when:
- the motivation behind the crime (totally or partially) was the deprivation of the rights of a person as a worker (for example, his right to receive fusalary); or
- the employer has exploited the worker in connection with the commission of the crime (for example, threatening a worker to work for less than the NMW).
Secondly, the government would introduce a system of notices of improvement (which will be issued in a civil proceeding, but an infraction would be criminal). An enforcement agency could ask a court for notice of improvement after a violation of the employment law, which would require a company to take corrective action within a specific period.
Cases relating to forced labour
- In the case of The State of Gujarat vs. Hon’ble High Court of Gujarat, the Supreme Court held that a prisoner sentenced to brutal imprisonment cannot complain that the prison authorities perpetrated the offence of illegal compulsory labour under Section 374 of IPC by obliging him to do extra loads during and after the term of his imprisonment.
- In People’s Union for democratic rights Vs. Union of India commonly known as the Asiad case, the Supreme Court held that a reduction of Rs.1/- per worker every day by the jamadars from the wages owed to the workers employed by the contractors for the ASIAD project is illegal. Since the labourers did not receive the minimum wages of Rs 9.25 per day, it amounts to a violation of Article 23 of the Constitution and is forced labour. Every form of forced labour, beggar or otherwise, is ‘unlawful compulsory labour’ within the existence of Article 23. It makes no difference whether the person who is forced to give his labour or service to another person is remunerated.
Forced labour whatever form it may be in, is a crime against humanity. Its abolition is therefore urgently called for in a country like India whose ultimate goal has been the establishment of an integrated and just society, providing individual rights and liberty, with equal opportunities and a basic economic minimum wages for all.
Indeed, the issue of forced or bonded slavery is a part of the wider agrarian problem in our country. The remedy to the problem is, therefore, the transformation of the socio-economic situation of the labourers by bringing in fundamental changes in the agrarian structure and social relationships in the rural areas.
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