Right Against Exploitation

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Legal Jumble

11 min readJan 11, 2020

Introduction

The makers of the Indian Constitution have ensured that every person is guaranteed the right to life and personal dignity under Article 21, which explicitly states that:

“No person shall be deprived of his life or personal liberty except according to procedure established by law[1].”

Article 21 is one of the most important and controversial part of the Constitution of India. There are several landmark cases in Indian legal history that have challenged this article of the Constitution of India. Take for instance the following cases:

· Maneka Gandhi v. Union of India[2]: In this case, the Supreme Court held that Article 14, 19 and 21, “sustain, strengthen and nourish each other.”

· A. K. Gopalan v. State of Madras[3]: Where the entire validity of the Preventive Detention Act, 1950 was challenged in court.

· Olga Tellis v. Bombay Municipal Corporation[4]: Where pavement dwellers brought an action in court against their eviction by the civic body as their right to livelihood was being snatched away.

In the words of Justice Bhagwati, Article 21 embodies a constitutional value of supreme importance in a democratic society.[5] Justice Iyer has described Article 21 as the procedural magna carta, protective of life and liberty.[6]

Complimentary to these personal rights, are the rights enshrined in the Indian Constitution under Articles 23 and 24. These articles provide the rights against exploitation and guarantee the dignity of an individual. Right to life and personal liberty cannot be truly enforced as long as some people are being exploited by others. These two articles of the Constitution have provisions specially made to prevent exploitation of various kinds. Thus, in a way, the rights guaranteed under these two articles actually enforce the rights under Article 21. By making provisions for such rights, the Constitution has taken a step in the direction of protecting the liberty of people and ensuring that no one is exploited, or used by others for their own benefit.

The right against exploitation makes trafficking of humans and ‘begar’ illegal. Those found practicing this can be punished accordingly. Slavery has also been declared as an offense as it is also a severe kind of exploitation. This right also makes child labour and bondage illegal. It declares that no child under the age of 14 can be made to work in factories, mines and industries where working conditions are unsafe and a risk to the life is involved.

Right Against Exploitation

Article 23 of the Indian Constitution reads as:

“(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law.

(2) 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[7].”

In simpler words, Article 23 prohibits any sort of human trafficking, begar — unpaid forced labour, and other forms of forced or bonded labour. Any violation of this right is punishable in accordance with the law. This right can be availed by anyone irrespective of their citizenship. This right protects individuals from exploitation by individuals and also by the State. Article 24 speaks about prohibition of employment of children in factories:

“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[8].”

This article prohibits any sort of employment of children below the age of fourteen years in hazardous work such as mines, factories, industries and construction work. It is important to note that there is no prohibition on children working in any harmless work. The Child Labour (Prohibition and Regulation) Act, 1986 is very significant in this regard. It sets out the laws regarding prohibition of child labour in dangerous places.[9] The government of India, in 2006, banned employment of children in businesses such as hotels, restaurants, resorts, factories, tea shops etc., as workers and also as domestic servants. Anyone employing a child under the age of fourteen could be held liable and prosecuted.

Exploitation — The word ‘exploitation’ is defined in The Oxford Dictionary as “The action or fact of treating someone unfairly in order to benefit from their work.[10]” As propounded by many theorists such as Thomas Hobbes and John Locke, the stronger individual/group always tries to dominate over the weaker ones and exploit them to the fullest extent. Slavery is one of the most inhuman forms of exploitation. It is also the most obvious form of exploitation where the owner forces the slaves to work by beating and threatening them. In return, the master only provides as much as is enough to keep the slaves alive. The fruit of their work is kept by the master. It was very widely prevalent all over the world and continues to exist in some remote places of the world, although many efforts are being made to wipe out and abolish the practice.

Other forms of exploitation are:

1. Labour exploitation — This refers to the exploitation of labourers who are made to work for unfair hours in unsafe working environments and paid very little, or remain unpaid. It is an extreme form of exploitation. According to Karl Marx, labour exploitation is the backbone of a capitalist society. Here, the factory owners or capitalists, make labourers work for extreme hours and don’t pay them fairly, to maximise their own profits[11]. Begar was a practice where labourers were forced to work without any remuneration. In the pre-independence era, labourers were forced to perform unpaid work for the government. Zamindars also compelled their tenants to give their services without any sort of payment to them[12]. It can be noted that here the stronger individual is the exploiter who extracts maximum work from the labour and pays as less as possible (often nothing), whereas the weaker group is the exploited one that actually produces the wealth but owns none of it.

2. Child labour — It is one of the most disturbing and grave forms of exploitation that the researcher has come across during the course of his research. According to the United Nations Children’s Fund (UNICEF) and World Bank data[13], 168 million children falling in the age bracket of 5 to 17 are currently engaged in child labour, across the globe. This is a very disturbing figure. Most among them suffer in the other worst forms of child labour, including slavery, forced and bonded labour, child soldiering, sexual exploitation, or are used as tools in illicit activities, such as drug trafficking. Child labour deprives children of a normal childhood and is detrimental to their growth, health and overall well-being. Once these children are trapped in these chains, they are restricted to a life of poverty and their rights are stolen from them, such as their right to education.

3. Human Trafficking — This is a process of exploiting people by enslaving them and coercing them into unlawful activities such as forced prostitution, forced marriage, domestic servitude and organ trade.[14] In human trafficking, the human rights of an individual are violated, or snatched away from them, for commercial exploitation. Take for instance, organ trade, where organs are extracted from the victim and sold off. The victim is often coerced into giving the organ but no money is paid. These acts are punishable under the Immoral Traffic (Prevention) Act, 1956[15].

Human trafficking is an organised crime that involves several exploiters. As per a report by The United Nations Office for Drugs and Crime (UNODC), 51% of the identified traffickers are women, 28% are children and 21% are men. On the other hand, 63% of the identified traffickers were men and 37% were women.[16]

Case Laws

1) People’s Union for Democratic Rights and Others v. Union of India and Others, AIR 1982 SC 1473.

In this case filed by the People’s Union for Democratic Rights, which is a non-governmental organisation for protecting democratic rights of people, the petitioners had engaged three social scientists to investigate and enquire into the working conditions of the workers employed by contractors responsible for the upcoming Asian Games that were being held in Delhi.

Bases on their research, the petitioners wrote a letter to one Judge of the Supreme Court highlighting the violation of fundamental rights of the workers due their exploitation by the contractors. Many rights given to workmen were contravened, such as those pertaining to Minimum Wages Act, Equal Remuneration Act, Employment of Children Act, Contract Labour (Regulation and Prohibition) Act and Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act.

The court viewed this letter as a writ petition in public interest and made the Union of India, Delhi Administration, Delhi Development Authority and New Delhi Municipal Corporation respondents in this case. The judgement took into notice the urgency of the matter and directed the respondents to adhere to the respective labour laws and to ensure the rights of the workers employed by them.

It was found by the court that the contractors appointed for construction work had employed labourers through jamadars. The workers were entitled to a daily wage of Rs. 9.25 per day. However, the petitioners alleged that the workers were not paid this amount as they were being exploited by the contractors and jamadars. The Ministry of Labour admitted that the amount was not being paid to the workers directly, but to the jamadars. The jamadars were taking a commission of Rs. 1 and the workers were paid only Rs. 8.25 per day. Also, it was alleged that the provisions of Equal Remuneration Act, 1976 was violated as women workers were being paid only Rs. 7 per day and the rest of the amount was being misappropriated by the jamadars.

The petitioners also pointed out that there was a violation of Article 24 of the Constitution of India as children below the age of fourteen years were being employed by the contractors in the hazardous work of construction. The provisions of the Employment of Children Act, 1936 were also violated. It was noted that the respondents were in violation of the Contract Labour (Regulation and Abolition) Act, 1970. The workers were denied proper living conditions and medical facilities. The report of the three scientists described in detail the manner of violations of the Minimum Wages Act, 1948, Equal Remuneration Act, 1976, Articles 23 and 24 of the Indian Constitution among others.

The court order directed that the respondents pay the workmen the appropriate wage amount directly to them and not through the jamadars. It also mentioned that if any workmen did not receive the wages, then he/she could institute necessary legal action upon the contractor for recovery of the amount. The court also found that the contractor was violating the rights of the workmen provided by Article 23 as they were performing forced labour without any remuneration.

2) M.C. Mehta v. State of T.N. & Others, (1996) 6 SCC 756.

Activist lawyer M.C. Mehta filed a petition under Article 32 of the Indian Constitution and invoked the Supreme Court’s power when the situation at Sivakasi cracker factories became intolerable and the fundamental right of children was being grossly violated. Sivakasi was once taken as the worst offender in matters of child rights violations and employing young children in hazardous work. The respondent, i.e., the government of Tamil Nadu, did not deny the problem of child labour, instead, they suggested ways to reform the situation.

The court noted that the children’s fundamental rights enshrined in Article 24 were being violated. 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. In this case, however, children were employed by the cracker factory in the work of manufacturing matches and fireworks, which the Court noted to be hazardous as it can give rise to fatalities in case of accidents.

Following the arguments, the Court directed in its judgement that all employers illegally employing children must pay Rs. 20000 towards the Child Labour Rehabilitation-cum-Welfare Fund. This amount would be used for the benefit of that child only. Further, the court gave directions to the government to either:

(a) provide employment for an adult member of every family with a child who is employed in a factory or mine or other hazardous work, or,

(b) contribute Rs. 5,000 to the Child Labour Rehabilitation-cum-Welfare Fund for each child employed in a factory or mine or other hazardous employment.

Adults who are offered jobs in this way would also have a duty to ensure that their children entered full-time education and did not continue to work.[17] Under Article 32 of the Indian Constitution, the Government of India is mandated to undertake such actions of legislative, administrative, social and educational nature, that will ensure protection of the child from hazardous work and also from exploitation.[18]

Conclusion

Exploitation is a very big problem around the world and especially in India. The stark reality is that people are being exploited in numerous ways and in a horrible manner. Even though there are so many provisions in the Constitution for safeguarding the rights of people and children against exploitation, labourers, women and children are being exploited as before. The dynamics have not changed because of the laws. In spite of numerous enactments and legislations for banning employment of children in hazardous industries and workplaces, child labour is a dark truth.

Human trafficking is a major problem in the world. It has become a profitable industry, of sorts. According to estimates from the International Labour Organisation[19], the forced labour component of the human trafficking industry alone generates a revenue of a hundred and fifty billion US dollars. Human trafficking is considered to be one of the fastest growing organised crime industries.

Article 24 intends to protect children from exploitation in the form of forced labour under hazardous circumstances. The Right of Children to Free and Compulsory Education Act, 2009 is aimed at ensuring that all children receive free education between the age of 6 to 14 years. However, the reality is startling. The idea of free and compulsory education for all children seems utopian in the current scenario. India has the highest number of child labourers in the world, and this workforce is largely comprised by out of school children who have to work in order to support their families.

From the above, it can be inferred that the Right Against Exploitation has so far failed to achieve its objective and has had negligible effect. The primary reason for this failure is the lack of an effective implementation. Due to a neglectful attitude on the part of the government and other officials, the growth of these industries has gone unchecked and child labour continues to take place illegally. The other factor responsible for this is the slow justice delivery system. The average pendency of cases in the subordinate courts is six years.[20] In such a system, it is quite difficult to obtain justice and so, the offenders are able to get away easily.