Articles 23 and 24: Forced Labour and Child Labour

And fourteen is the constitutional age, which is why article 21A's free and compulsory education runs from six to fourteen and why the child labour legislation was built around the same line. The 2016 amendment then created a second category, the adolescent between fourteen and eighteen, who may not be employed in a hazardous occupation.

The two statutes

The Bonded Labour System (Abolition) Act, 1976 answers article 23. Its section 4 abolishes the bonded labour system and every bonded labourer stands freed and discharged; its section 6 extinguishes the liability to repay a bonded debt; its section 15 puts the burden of proof on the creditor; and its sections 13 and 14 create Vigilance Committees. [The Bonded Labour Act: Abolition and Extinguishment] carries it.

The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 answers article 24, and its 2016 amendment changed both its name and its scheme: it now prohibits the employment of a child in any occupation rather than in a listed set, and separately prohibits the employment of an adolescent in a hazardous occupation. [The Child and Adolescent Labour Act: the Prohibition] carries it.

Why these two articles are the paper's economic core

Because everything else in Part III is about status and these two are about work. Articles 14 to 18 govern how the State classifies people; articles 25 to 30 govern religion and culture. Articles 23 and 24 govern the terms on which a person's labour may be taken, and for the unorganised worker, the bonded labourer and the working child that is the whole of the question.

And because both are enforceable against a private party, which almost nothing else in Part III is. A disadvantaged worker's complaint is usually against an employer and not against the State, and articles 23 and 24 are the only fundamental rights that reach the employer directly.

Worked example

Her Q3, on unorganised and bonded labour, and Q7(b) on children.

Give both articles verbatim, since both are short.

Give the four features of article 23, and put the reading of force as including compulsion from hunger and poverty at the centre, because that is the proposition the bonded labour cases rest on.

Give the four observations on article 24, and stress that it is not a general prohibition on child labour but a prohibition on hazardous employment.

Name the two statutes and the constitutional obligation each answers.

Close on the horizontality point, which is what makes these two articles usable against an employer.

What it does NOT mean

It does not mean article 24 prohibits all child work. It prohibits work in a factory, a mine or other hazardous employment.

It does not mean article 23 forbids all compulsory service. 23(2) expressly permits compulsory service for public purposes, without discrimination.

And it does not mean the statutes exhaust the articles. The rights are directly enforceable, and a person may move a court under article 32 without waiting for a prosecution.

Quick revision

• 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. 23(2) permits compulsory service for public purposes without discrimination on religion, race, caste or class.
• Force includes compulsion arising from hunger and poverty, so labour accepted below the minimum wage out of want is forced labour. That reading is the doctrinal foundation of the bonded labour cases.
• Article 24: no child below fourteen in any factory or mine or other hazardous employment. Absolute in form, with no restriction clause, and not a general ban on child labour.
• Both bind private persons, and with articles 15(2) and 17 they are the four horizontal provisions in Part III.
• Two statutes: the Bonded Labour System (Abolition) Act, 1976 answers article 23, with section 4 abolition, section 6 extinguishment and section 15's burden on the creditor; the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, as amended in 2016, answers article 24 and now bans a child in any occupation and an adolescent in a hazardous one.
• International ancestors: article 4 of the Universal Declaration and the forced labour conventions.

Test yourself

1. What does article 23 provide, and how has force been read? Article 23(1) provides that traffic in human beings and begar and other similar forms of forced labour are prohibited and that any contravention shall be an offence punishable in accordance with law. Article 23(2) provides that nothing in the article shall prevent the State from imposing compulsory service for public purposes, and that in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.

Four features matter. It binds private persons, since it is not addressed to the State, so a private employer who exacts forced labour violates the Constitution directly; it is the third of the four horizontal provisions in Part III, the others being articles 15(2), 17 and 24. It creates an offence in the Constitution, in the same form as article 17, and the Bonded Labour System (Abolition) Act, 1976 is Parliament's answer to that obligation. Begar is a specific historical practice, labour exacted without payment, and the words other similar forms of forced labour were added precisely so that the article would not be confined to it.

And force has been read widely. The courts have held that force includes not merely physical or legal compulsion but compulsion arising from hunger and poverty, so that a person driven by want to accept labour on terms below the statutory minimum wage is providing forced labour within the meaning of article 23. That reading is what converts the article from a prohibition on slavery into an economic provision, and it is the doctrinal foundation of the bonded labour litigation, because it allows a court to treat payment below the minimum wage as itself a constitutional violation rather than merely a statutory one.

2. What does article 24 provide, and what does it leave out? It provides 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. Four observations follow. It is absolute in form: there is no reasonable restriction clause, no proviso and no exception, which distinguishes it from almost everything else in Part III. It binds private persons, being the fourth horizontal provision. It is not a general prohibition on child labour: it forbids employment in a factory, in a mine or in other hazardous employment, so everything turns on what counts as hazardous, and that is where both the jurisprudence and the legislation sit. And fourteen is the constitutional age, which is why article 21A's guarantee of free and compulsory education runs from six to fourteen and why the child labour legislation was built around the same line.

What it leaves out is non-hazardous child work, which the Constitution does not forbid at all. Parliament closed part of that gap in 2016, when the amendment to the child labour legislation prohibited the employment of a child in any occupation whatever, subject to exceptions for helping the family after school hours and for work in the audio-visual entertainment industry, and created a second category, the adolescent aged between fourteen and eighteen, who may not be employed in a hazardous occupation or process.

3. Why are these two articles the economic core of the paper? Because everything else in Part III is about status and these two are about work. Articles 14 to 18 govern how the State may classify people; articles 25 to 30 govern religion, culture and minority institutions; articles 19 to 22 govern liberty. Articles 23 and 24 govern the terms on which a person's labour may be taken, and for the unorganised worker, the bonded labourer and the working child that is the whole of the question. A landless labourer's complaint is not about classification or about culture; it is that the terms on which they work are ones nobody would accept freely.

And because both are enforceable against a private party, which almost nothing else in Part III is. Article 12 confines the fundamental rights to the State, so a complaint against a private employer normally has no constitutional remedy at all and must be founded on a statute. Articles 23 and 24 are the exception: a disadvantaged worker's complaint is usually against an employer rather than against the State, and these are the only two fundamental rights that reach the employer directly. Their international ancestors are article 4 of the Universal Declaration, which prohibits slavery and servitude in all their forms, and the forced labour conventions of the International Labour Organization.