The Right Against Exploitation

Broken down

Article 23(1) prohibits three things, and makes doing any of them an offence: traffic in human beings, which is dealing in people as goods; begar, which the case law below defines as labour exacted without payment; and "other similar forms of forced labour", the phrase that does almost all the work. "Similar" is not a restriction to unpaid labour: if it were, the third limb would mean nothing, since unpaid forced labour is already begar, and the added words would be "rendered futile and meaningless".

Article 23(2) is the one permitted exception. The State may impose compulsory service for public purposes, provided it does not discriminate on grounds only of religion, race, caste or class.

Article 24 has three elements. A child below fourteen; employment in a factory or a mine, which needs no further test; or engagement in "any other hazardous employment", where whether the work is hazardous has to be decided.

The minimum wage case

Facts. People's Union for Democratic Rights v. Union of India, AIR 1982 SC 1473, 1983 SCR (1) 456, decided 18 September 1982 by a Bench of two. The petitioner organisation commissioned three social scientists to investigate the conditions of the workmen building the Asian Games projects in Delhi. On their report it wrote to Bhagwati J. alleging breaches of the labour laws by the contractors and the authorities. The Court treated the letter as a writ petition under article 32 and issued notice to the Union of India, the Delhi Administration and the Delhi Development Authority. The minimum wage for these workers was Rs 9.25 a day; the jamadars who recruited them were paid that sum but passed on only Rs 8.25, keeping Re 1 a day per worker.

Held on article 23. "Article 23 is not limited in its application against the State but it prohibits 'traffic in human beings and begar and other similar forms of forced labour' practised by anyone else." "Begar" is "a form of forced labour under which a person is compelled to work without receiving any remuneration", but the article "strikes at forced labour in whatever form it may manifest itself"; reading it otherwise would reduce it "to a mere rope of sand". As to what makes labour forced, "force" may be physical, or exerted through a legal provision, "or it may even be compulsion arising from hunger and poverty, want and destitution". Hence the operative holding: "Where a person provides labour or services to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23." Such a person may ask the court to direct payment of the minimum wage. One who is paid it is not providing forced labour, "because he gets what he is entitled under law to receive".

Held on article 24. Since "construction work is a hazardous employment", no child below fourteen may be employed on it, and the prohibition "must operate proprio vigore", of its own force, even without legislation naming the industry.

Why it matters. It converted a labour statute into a constitutional right. Before it, underpayment was a claim under the Minimum Wages Act 1948; after it, it breaches article 23 and the worker may move the Supreme Court under article 32. It is also the leading authority for the horizontal reach of a fundamental right.

The bonded labour case

Facts. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802, 1984 SCR (2) 67, decided 16 December 1983 by a Bench of three. An organisation working for the release of bonded labourers wrote to Bhagwati J. that labourers from other States were working in stone quarries in Faridabad in Haryana under inhuman conditions, that many were bonded, and that the welfare legislation was not being applied to them. The Court treated the letter as a writ petition and appointed a commission, whose report confirmed the allegations: air full of dust, some workmen not allowed to leave, dirty water from a nullah to drink, shelter of piled stones roofed with straw, and no medical treatment or schooling. Haryana answered that any forced labourers there were not bonded labourers within the Bonded Labour System (Abolition) Act 1976, and that the burden of proving bondage lay on the labourers.

Held on article 23. The writ petition was maintainable and was allowed. "Persons in this country obliged to serve as bonded labour are entitled to invoke Article 23 of the Constitution", and "bonded labour is a form of forced labour", which section 12 of the Act of 1976 itself recognises. The argument on burden of proof was "misconceived": a labourer can never produce the evidence, and the employer will simply deny the advance. So "whenever it is shown that a labourer is made to provide forced labour, the Court would raise a presumption that he is required to do so in consideration of an advance or other economic consideration received by him and he is therefore a bonded labourer", rebuttable by the employer or the State.

Held on article 21. It is "the fundamental right of every one in this country, assured under the interpretation given to Article 21 by this Court in Francis Mullen's Case, to live with human dignity, free from exploitation". That right "derives its life breath from the Directive Principles", particularly articles 39(e) and (f), 41 and 42, and must at least include protection of the health and strength of workers and of the tender age of children, educational facilities, and just and humane conditions of work. Where the State has already legislated for these things, its inaction in enforcing them "would amount to denial of the right to live with human dignity enshrined in Article 21".

Why it matters. It joins article 23 to article 21, so that exploitation is both forced labour and an affront to dignity, and it shifts the burden of proof, which is what made the Act of 1976 usable. Francis Coralie Mullin, on which the dignity holding rests, is named here without a citation because its report has not been read for this chapter.

The child labour case

Facts. M.C. Mehta v. State of Tamil Nadu, AIR 1997 SC 699, (1996) 6 SCC 756, decided 10 December 1996 by a Bench of three. Sivakasi in Tamil Nadu was the country's worst offender in employing children: as on 31 December 1985 it had 221 registered match factories employing 27,338 workmen, of whom 2,941 were children, and the manufacture of matches and fireworks is hazardous work giving rise to fatal accidents. The petitioner moved the Supreme Court under article 32, the children's right under article 24 being grossly violated. After an order of 31 October 1990 giving directions, the Court took cognizance again when a cracker factory accident killing 39 people was reported.

Held. Article 24 has been a fundamental right from the commencement of the Constitution, and article 45 had been raised to that status by Unni Krishnan. Reading article 24 with articles 39(e) and (f) and 45, the Court gave directions to make the Child Labour (Prohibition and Regulation) Act 1986 work. An employer who employs a child in contravention of the Act must pay Rs 20,000 for each such child into a Child Labour Rehabilitation-cum-Welfare Fund, and the inspectors appointed under section 17 are to secure it; the liability does not cease if he then disengages the child. Where the appropriate Government cannot give an adult of the child's family a job in the child's place, it must itself deposit Rs 5,000 for each child, making Rs 25,000. "The employment given or payment made would cease to be operative if the child would not be sent by the parent/guardian for education." In non-hazardous work a child's hours must not exceed four to six a day, it must receive two hours of education daily, and the employer must bear the whole cost of that education.

Why it matters. It is this module's standing example of the technique described in [Continuing Mandamus and Judicial Guidelines]: a right that had existed since 1950 made operational by a court designing a fund, a tariff and a reporting duty. It also shows articles 24, 39 and 45 working as one scheme, since the money is tied to the child going to school.

Three words students confuse

Every bonded labourer provides forced labour and every begar is forced labour, but not every case of forced labour is begar or bondage. Forced labour is the widest of the three, and the one that catches underpayment.

What it does NOT mean

It does not mean article 24 prohibits all child labour. It prohibits it in a factory, a mine or other hazardous employment. Work outside those categories is regulated by statute, and M.C. Mehta's directions on hours and schooling govern that remainder, not article 24 itself.

It does not mean every low wage offends article 23. The line is the statutory minimum wage, and PUDR says in terms that a person paid it is not providing forced labour.

It does not mean consent is an answer. A contract of service cannot be specifically enforced against the employee, because compelling performance would itself be forced labour; and a contract made under economic compulsion "may appear on its face voluntary but it may, in reality, be involuntary".

A worked example

A State corporation awards a contract for a stadium. The contractor engages migrant workers through a jamadar. The notified minimum wage is Rs 500 a day; the workers receive Rs 430, the jamadar keeping the rest. Two of them are thirteen and carry cement. A trade union writes to the High Court.

Step one, is there a fundamental right in play, given that the wrongdoer is a private contractor? Yes. On PUDR, articles 23 and 24 are enforceable against anyone.

Step two, is underpayment forced labour? Yes. Remuneration below the minimum wage falls within "forced labour" in article 23, because the compulsion of poverty is "force", and the union may ask for a direction that the minimum wage be paid.

Step three, what about the children? Construction is hazardous employment on PUDR, so article 24 forbids their engagement outright, whatever their parents agreed.

Step four, can the corporation say it is not the employer? No. Where a right enforceable against private persons is violated, the State is constitutionally obliged to interdict the violation.

Step five, what relief? Payment of the minimum wage; removal of the children; and on M.C. Mehta, Rs 20,000 per child from the employer into the welfare fund, the State adding Rs 5,000 if it cannot give an adult of the family a job, the payment conditional on the children being sent to school.

Quick revision

• Articles 23 and 24 are the right against exploitation, and both bind private persons, not only the State.
• Article 23(1): traffic in human beings, begar and other similar forms of forced labour are prohibited, and contravention is an offence punishable in accordance with law. Article 23(2) saves compulsory service for public purposes, imposed without discrimination on grounds only of religion, race, caste or class.
• Begar is labour without remuneration; article 23 is not confined to it, and forced labour is caught whether paid or unpaid.
• PUDR (1982): "force" includes compulsion arising from hunger and poverty, so payment below the minimum wage is forced labour; and construction is hazardous, so article 24 applies proprio vigore.
• Bandhua Mukti Morcha (1983): bonded labour is a form of forced labour; once forced labour is shown the Court presumes bondage, rebuttable by the employer or the State.
• Article 24: no child below fourteen in a factory, a mine or any other hazardous employment.
• M.C. Mehta (1996): Rs 20,000 per child from the employer into a Child Labour Rehabilitation-cum-Welfare Fund, Rs 5,000 from the State where no adult job is provided, and the benefit stops if the child is not sent for education.

Test yourself

1. Why does article 23 bind private persons when most fundamental rights bind only the State, and what duty does that place on the State?

2. Define begar and forced labour and explain why the words "other similar forms of forced labour" cannot be read as requiring the absence of payment.

3. State the holding in PUDR on the minimum wage, and identify exactly what makes such labour "forced".

4. What presumption did Bandhua Mukti Morcha lay down, why was it necessary, and who may rebut it?

5. Article 24 does not prohibit all employment of children. What does it prohibit, what governs the rest, and how did M.C. Mehta tie the money to schooling?