An Essay on the Right Against Exploitation: A Fundamental Right to Protect Dignity and Freedom
Living with freedom and dignity is the fundamental right of an individual. The Right Against Exploitation gives the right to the individual to appeal in court against any exploitation. The present essay gives a detailed description of the provision of the right against exploitation, its limitations, and various other related laws.
Introduction
Today we are living in an independent country. But Indians had faced a long period of slavery in the past and struggled hard to get freedom. And, certain studies show that India has a large number of people who are still engaged in modern slavery. As per the global survey index held in 2018, India was ranked 4th among the 167 countries in the world. Modern slavery is a different form of slavery or exploitation, which is a common occurrence in India and many other countries. Some of the facts are shocking, such as the fact that there were around 1,100 cases of human trafficking in 2016, which increased to 2278 in 2018. According to data from the National Crime Records Bureau, the number of cases of trafficking in 2019 was 2208 and 1714 in 2020. Approximately 10 million children who work as child labour are below the age of 14 years (Census of India, 2011). According to data published in The Times of India on June 12, 2020, there are approximately 152 million children worldwide working as child labourers, with India accounting for close to 7.3 per cent of that figure. The above data shows how these cases are rising.
What is Modern Slavery?
Modern slavery can be defined as the situation wherein the illegal exploitation, harbouring, or recruitment of children, women or men is done for personal or commercial benefits using any of the means such as force, abuse of power, deception, coercion, violence, or any kind of threats. In this situation, the person becomes so compelled that he/she cannot refuse or leave. Any kind of criminal exploitation, sexual exploitation, forced labour, organ harvesting, and domestic enslavement are examples of modern slavery.
There are many forms of modern slavery in society, such as human trafficking, begar, forced labour, debt bondage, child slavery, early marriages, etc. "Human trafficking" is a form of unlawful activity in which people are transported or harboured or coerced or threatened to do forced labour, forced prostitution, marriages, organ removal, or any other illegal activity to get benefit from their work or service. A "begar" is a labour service in which a person is forced to work without pay. Under "forced labour," people are threatened and forced to work against their will. Victims work very long hours and are paid very little or nothing in awful conditions. In fact, each kind of slavery practice includes forced labour to some extent. In "debt bondage," or bonded labour, people who borrow money are forced to do work as bonded labour to pay off the debt. It is the world's most prevalent form of slavery. "Descent-based slavery" is a situation where people are treated as property. They were kept as slaves since birth because their ancestors were caught in slavery. "Slavery of children" includes child trafficking, child marriages, child domestic slavery, and exploitation for someone else's gain. Forced marriages occur when a person is married against their will. Early marriages are child marriages. Forced marriages and child marriages are also considered a form of slavery. People working as domestic workers become victims of domestic slavery. People of any age, gender, nationality, and ethnicity may be the victims of modern slavery. Most of the victims of modern slavery are children, girls, and women. At least 1 in 4 of them are children. The worst part is that they may not recognise themselves as victims of this kind of exploitation. What are the provisions under the Right Against Exploitation?
Though after the enactment of some acts and bills, especially the Indian Penal Code, 1860, slavery was completely stopped in India. But, while engrafting the Constitution of India, constitution-makers also felt the need to incorporate a fundamental right to tackle such situations. Therefore, after the formation of the Indian Constitution, a fundamental right, "Rights against Exploitation," came into force, which guarantees liberty and dignity to every Indian. It prohibits the exploitation or abuse of anyone by force or allure, such as human trafficking, selling of human beings, forced labour, child labour, bonded labour, begar etc. These practices are considered exploitation and violate the provisions of the Constitution of India. Through Articles 23 and 24 of the Rights against Exploitation, it is ensured that there will be no slavery or exploitation of any individual. Article 23 of the Right Against Exploitation
Exploitation is the misuse of a person or their services forcefully or without their consent. Article 23 deals with the prohibition of human exploitation, which may be in the form of human trafficking, forced labour, begar or other kinds of exploitation. Under this Article, such types of activities are strictly prohibited and are considered a punishable offence in the event of any violation.
Prohibition of Human Trafficking, Beggars and Forced Labour
In Article 23, traffic in human beings such as buying or selling of women or men for any illegal activities or sexual exploitation or commercial exploitation or any other purpose through force or deception, violence is strictly banned. Indian Penal Code (1860), Section 370 stated human trafficking or buying or selling of a person as a slave is punishable with imprisonment of a term extendable up to seven years and liable to fine. In the case of children, IPC Sector 372 is applicable which prohibits the selling or buying of any person age under 18 years for prostitution or illicit intercourse. In 1956, Parliament had also enacted an Act named "Immoral Traffic (Prevention) Act, 1956 to suppress Children and women in immoral trafficking. Trafficking in human beings, begars and forced labour or any other form of forced labour is prohibited under Article 23 (1) and is punishable by the law of India. Through Articles 23 and 24 of the Rights against Exploitation, it is ensured that there will be no slavery or exploitation of any individual.
Beggar practice, in which the services of a person are utilised without paying any remuneration, was widespread in the former princely Indian States. This immoral practice has ended under Article 23(1) of the Right Against Exploitation. Begar is another form of forced labour that was also accepted by a Division Bench of the Bombay High Court in the case of S. Vasudevan vs. S.D. Mittal [AIR 1962 Bom 53]. The Delhi High Court has also stated in its landmark judgement given in the case of Ram Niwas vs. Uoi & Ors [W.P.(C) No.7415/2008] that "it makes no difference whether the person who is forced to give his labour or service to another is remunerated or not. Even if remuneration is paid, labour supplied by a person would be hit by Article 23 if it is forced labour, that is, labour supplied not willingly but as a result of force or compulsion. " In the case of Gurdev Singh & Ors. etc. vs. State of Himachal Pradesh & Ors. [AIR 1992 HP 70, 1992 CriLJ 2542], the Court held that "Every form of forced labour, "begar" or otherwise, is within the inhibition of Article 23 and it makes no difference whether the person who is forced to give his labour or service to another is remunerated or not."
Forced labour is when a person is compelled to do work without their consent. In the case of People's Union for Democratic Rights vs. Union of India [1982, AIR 1473, 1983 SCR (1) 456], the Supreme Court interpreted the term "forced labour" as meaning that a person is forced to do labour or work. It does not matter if it is remunerated or not. Even if the remuneration is paid, the labour done by the person will come under the purview of Article 23. If he received wages less than the minimum wages as prescribed by the government, it would be considered as forced labour, as in the case of Sanjit Roy vs. the State of Rajasthan [20 January 1983, AIR 328, 1983 SCR (2) 271].
Bonded labour, or Bandhua Majdoor, is also a form of forced labour. This type of forced labour may be caused by debt incurred by economically weaker people from socially and economically stronger people, and the person is obligated to provide labour for years and be exploited until the debt is paid. To handle the problem of bonded labour, Parliament enacted the Bonded Labour System (Abolition) Act, 1976. In the case of Bandhua Mukti Morcha vs. Union of India [1984 AIR 802, 1984 SCR (2) 67], the Supreme Court held that under Article 23 bonded labour is prohibited, which is also a crude form of forced labour and is unconstitutional. The SC also passed directions that the bonded labourers involved in the mining activities should be freed and rehabilitated. Similarly, in Neerja Choudhary vs. State of Madhya Pradesh [AIR 1984 SC 1099, 1984 (2) Crimes 511 SC, 1984 LablC 851, 1984 (1) SCALE 874, (1984) 3 SCC 243], it was held that if a person is forced to work without or very little remuneration, it will be considered as bonded labour unless the employer proves otherwise. The SC also emphasised the rehabilitation of released bonded labourers. The Supreme Court held in the case of Dharambir vs. the State of U.P. [1979 AIR 1595, 1980 SCR (1) 1] that free labour by prisoners is unconstitutional under Article 23. Prisoners doing labour in jails must be given fair wages and must be allowed to visit their families at least once a year under guarded conditions. To make it more clear, in the case of Mukesh Advani vs. the State of Madhya Pradesh [1985 AIR 1363, 1985 SCR Supl. (1) 126], the Supreme Court stated that labour should be paid the minimum wages as fixed as per the provisions of the Payment of Wages Act. Implementing machinery should be set up by the officials for this.
Article 24 of the Right Against Exploitation
Under Article 24, the employment of children (below the age of fourteen years) in factories, mines, or any other hazardous employment is strictly prohibited, provided that the children are allowed to be employed in non-hazardous work. And no one can force a child below the age of 14 to work in a factory or engage in any hazardous activity. In the case of People's Union for Democratic Rights vs. Union of India [AIR 1982 SC 1943], the Supreme Court directed not to employ children aged below 14 years in the construction industry because construction is dangerous work, and this employment would be considered a violation of Article 24. In Sheela Barse & Ors vs. Union of India & Ors. [13 August 1986, JT 1986 136, 1986 SCALE (2) 230], the Supreme Court held that a child is a national asset and the proper development of a child's personality is the responsibility of the state. In M.C. Mehta vs. the State of Tamil Nadu & Others [AIR 1997 SC 699, (1996) 6 SCC 756], the Supreme Court stated that children aged below 14 years cannot be employed in any hazardous industry, mines, or other work, and such areas must be identified which are hazardous to human health, especially children, and ranked. The SC also held that this employment must be given to the parents of the children where they are employed. In Bandhua Multi Morcha vs. Union of India & Others [1997, 10 SCC 549], the Supreme Court directed the State of Uttar Pradesh to diminish the use of child labour in the carpet industry. It was also held that the state must make certain policies or directives for the benefit of children so that they can have access to education and get certain health facilities. The Karnataka High Court held in the case of A. Srirama Babu vs. the Chief Secretary [6 June 1997, ILR 1997 KAR 2269, 1998 (1) KarLJ 191] that the State shall take every step to educate the people to prevent child abuse and child labour and to create a separate independent department concerned with child welfare and that a record of the childbirth and his/her progress shall be kept.What are the limitations of Article 23?
Article 23(2) is the exception to Article 23. Under Article 23, compulsory service for public purposes can be imposed by the states, and while doing this, the state must not discriminate based on religion, race, caste, or class. This 'Article' prohibits immoral practices such as human trafficking, bonded labour, forced labour, begar, etc.
Some of the public services that can be imposed by the states under Article 23 (2) include the fact that the state can prevent a government servant from retiring if any departmental query is still pending, even if his retirement date is approaching Partap Singh vs. the State of Punjab [1964 AIR 72, 1964 SCR (4) 733]. The State can induce a person to do social service for the betterment of society under the National Service Act, 1972 (The State vs. Jorawar, September 15 1952, AIR 1953 HP 18). The state can compel a prisoner to do hard labour in rigorous imprisonment with the minimum wage in the case of the State of Gujarat & Another vs. the Hon'ble High Court of Gujarat (1998). The state can also compel the farmers to carry food grains to the government godown when it is noticed as an essential commodity (Acharaj Singh vs. State of Bihar & Another, August 19, 1966, AIR 1967 Pat 114).
Other laws passed in pursuance of the Right Against Exploitation
The government of India has also passed several laws which protect the people from exploitation. These laws were passed and came into force a long time ago, before independence, and since then have safeguarded the citizens of the country. Some of the acts are:
All these laws are made to stop the exploitation of people and children at workplaces, and punishments for violators are also made stricter.Conclusion
However, there are several laws made in pursuance of Articles 23 & 24 of the Right against Exploitation. But unfortunately, many children, women, and men are still being exploited. All kinds of slavery, as mentioned above, still exist in any form. To reach the level of zero exploitation, it is necessary to change the mindsets of people. Hence, there is a strong need to create awareness and education among the public so that they can report and appeal in court if they are exploited. Concerned authorities should implement these laws strictly, and the violators must be punished, so that there will be freedom for everyone, everywhere and always.
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A good article from the author. But how many people who are being exploited in India know that there is a right for them and they can fight against this exploitation. They have no other objective than getting out of their hunger for that day.
When we travel we see many small children begging or selling items near the traffic signals. We know that they are being exploited by their parents or by society itself. We see many small girls coming for domestic help to the houses of rich and middle-class families to take care of their families.
As long as the poverty remains and the gap between the rich and the poor get more and more widened the exploitation will increase. The political leaders should have sincerity and they should fight for the cause of these people who are being exploited. But here the leaders themselves are responsible for the present status. This is like fencing itself eating away the crop. So who will really help the people?
I think some NGOs should take up the issue and educate the public about the rights they have and a revolution should come in the country. Then only we can say the right is being enjoyed by all properly.