Article 23, Forced Labour, and What Force Means

In one line

Article 23 prohibits traffic in human beings, begar and other similar forms of forced labour, it binds private persons, and the Indian courts have held that force includes economic compulsion, so labour obtained for less than the minimum wage is forced labour.

The article

23(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.

23(2): nothing in the 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.

The three limbs of 23(1)

Traffic in human beings. The buying and selling of persons as goods, and the traffic in women and children for immoral purposes, together with allied practices such as devadasi dedication. The statutory answer is the trafficking legislation, and article 6 of the Women's Convention is its international counterpart.

Begar. A historical practice: labour exacted by a person of authority without payment, from a person who is not free to refuse. It is unpaid and involuntary, and both features are essential to it.

And other similar forms of forced labour. The residual limb, added so that the article would not be confined to the two practices named, and the limb through which the article does most of its modern work.

The reading of force

The proposition. The word force in the expression forced labour is not confined to physical or legal compulsion. It includes compulsion arising from hunger and poverty, want and destitution. Where a person is driven by want to provide labour or service for less than the minimum wage, that labour is not given freely, and it is therefore forced labour within article 23.

The corollary. Payment of less than the minimum wage fixed under the law is a violation of article 23, and the person so employed may enforce the right directly, against the employer as well as against the State, because the article is horizontal.

Two things follow that are worth stating separately.

A constitutional remedy for a wage claim. An unorganised worker paid below the minimum wage does not need to establish a contract, an employment relationship recognised by labour law, or a statutory route, and may proceed under article 32 or article 226.

And the payer's identity does not matter. Because article 23 binds private persons, the claim lies against a contractor, a sub-contractor or an individual employer, and not only against the State.

The decision

The case. People's Union for Democratic Rights v. Union of India, (1982) 3 SCC 235.