Analysis of Articles 23 & 24 India, a country of more than 125 crore people has so many cultures, states, languages, religions, etc. has the lengthiest constitution in the globe. India’s constitution is a document that contains the framework of the political systems, duties, rights, limitations, and structure of the government that India has to follow.
This constitution came into power on January 26, 1950, and is partitioned into parts and articles. Part III of the constitution talks about fundamental rights. In those fundamental rights which are given to Indian citizens, Articles 23 and 24 talks about the Right against exploitation. Especially, Article 23 is about the forbiddance of traffic in individuals and constrained work while article 24 is about the denial of work of youngsters in factories, industries, etc.
In this research paper, keeping in mind some questions, the writers will be doing the research. So those questions i.e., the research questions that will be answered after the completion of the paper are as follows:
- What is the relevance of articles 23 & 24?
- What kind of human trafficking is protected by these articles?
- Legislations in accordance with these articles?
For the completion of the paper, the writers will need a lot of information and data from various books such as The Constitution of India, Related acts such as The Factories Act, The Child Labour Act, various commentaries, articles, and web articles, research papers, etc. This clearly signifies that the main focus will be on the secondary information and data which is already collected. So, the Arm Chair Method i.e., a secondary type of methodology will be used because of the structure of the paper and another reason for the Covid- 19 pandemic.
Democracy is a way of life; it is a form of constitution and state system. It is one of the few ideologies and practices that evolve from the necessities of social life to the necessities of living. The provision of rights is an important part of the democratic system. Also, fundamental rights play a major role in the overall development of citizens and in restricting arbitrary rule of law. It also requires fundamental rights to strengthen democracy. Despite being the largest democracy in the world, before Independence, India was also the prey of the slavery system which is the cause of the exploitation of workers.
Exploitation means coercing a person of his due through force[i]. This is the meaning of French. The word ‘exploitation’ is used by Marx in his Capitalism theory in which he mentioned that upper-class people always exploit lower class workers to take undue advantage which eventually violates their human rights. We often see this capitalist behaviour today also. We see the existence of exploitation from the historical period in practices like Sati pratha, Devdasi system etc.
In India, various domestic workers work in informal and unregulated sectors for their work they get average wages, also they are not able to get proper working conditions, and lack protection and this all eventually make them a victim of Human Trafficking and Exploitation. Not only adults but child labour also work across several industries in India.
Exploitation is caused due to poverty, social norms, lack of work opportunities, illiteracy, and migration also social inequalities lead by discrimination are the main cause of exploitation. In everyday life, we see exploitation in many ways, whether it is done by the employer to employee or rich people abused poor, marginalised people, we also found many tribal people who are not aware of their rights be the victim of exploitation, many women in offices have faced sexual abused also the exploitation.
After the commencement of the Constitution of India on January 26 1950, it guarantees Liberty, Dignity, and Equality to each citizen and by adding Articles 23 & 24 it eliminated the practices of Exploitation and Human Trafficking. These are the rights given by the constitution are against abuse and protect labours’ rights against exploitation.
The constitution-makers drafted the constitution keeping in view the traditional practices and social norms which would be sufficient in the new political and social age and develop a vision of freedom, equivalent insurance of law, taking into account all religions and their practices throughout India.
In this research project, we study Rights against exploitation which are guaranteed under Part III of the constitution fundamental rights, Articles 23 & 24 of the Constitution of India. Fundamental rights impose negative legality on the state and these rights apply against the state. Rights against exploitation protect from all forms of forced labour as well as human trafficking. This study also includes laws in India related to exploitation and Human Trafficking and case analysis.
Article 23 is cherished in Part III of the Constitution which is a Fundamental Right. 23 Article prohibits human trafficking and forced labour and in article 23 it is mentioned that the violation of article 23 causes an offence of exploitation which is punishable by law. Article 23 applies to both the citizens and non-citizens. It shields people from the state as well as private bodies.
23(1): Traffic in human beings and beggars and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with the law[ii].
23(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[iii].
Clause (1) of Article 23 mentioned various forms of human trafficking as follows:
- Human Trafficking: The sale and buy of a Human being for sexual slavery, compelled prostitution and compelled labour. The that means of ‘traffic’ in people protected in phrase Slavery. The parliament has increased the suppression of immoral traffic in the women and girls act[iv].
- Beggar: In this type, the worker has to work against his will. The worker is not paid for the work he has done. It means voluntary work without any payment.
- Bonded labour: This is a form of forced labour which is prohibited by article 23. This is the practice in which the labour force work to pay off his debt this kind of labour is also known as ‘Bandhua Majdoor’, The Bonded Labour System Abolishment Act was enacted in the year 1976. This act was enacted to tackle the problem of bonded labour[v].
Article 23 has a very wide scope and it ensures that any person is not forced to do anything against his/her will. And therefore, it prohibited landowners to force workers to work on their lands to provide free service. In article 35 it is stated that the Parliament can enact laws to punish acts, which are prohibited under the article 23.
The practice of beggars from weaker sections is very common in India. For their work, they don’t get any remuneration and if they get any remuneration, it is less than minimum wages. Article 23 maintains an element of the Constitution in which it is stated that each human being has the fundamental right to live a life with dignity and respect.
Forcing to do any work violates this principle and it somehow breaks the intention of the constitution is that a person must do any work voluntarily. Women were also forced and coercion by men and the owner. Article 23 takes positive steps towards the protection of labour in which it not only protects slavery but also traffics in women, children and such evil practices,
24 Article is enshrined in Part III of the Constitution which is Fundamentals Right. 24 Article prohibits the employment of children in factories, etc and in article 24 it is mentioned that the violation of article 24 causes an offence of exploitation which is punishable by law. Article 24 applies to both citizens and non-citizens.
24 Article: 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[vi].
This article specifically and in very simple terms says that no child shall be hired to work in a factory or mine, or in any other dangerous occupation if the age of that child is less than the age of 14 years. This article guarantees all the citizens which are less than 14 years of age a fundamental right against exploitation.
This is for the welfare and safety of the children as the children are the future of the nation, and if the children of the nation do labour in such fatal industries and are kept away from education, the future of the nation is unsafe. It is undoubtedly the duty of the nation to provide good facilities such as food, education, health, etc. to the children of the nation.
If such facilities are provided by the government of the nation, the children will be able to do something good that will contribute to the growth of the nation. This article is solely not capable of doing that. So, article 24 is most of the time read with article 39(e) and Article 39(f).
Article 39(e): The State shall, in particular, direct its policy towards securing that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength[vii];
Article 39(f): The State shall, in particular, direct its policy towards securing that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment[viii].
The Indian Parliament has adopted certain legislation to achieve the goal of article 24. Those are:
- The Employment of Children Act, 1938: It prohibits the children below 14 years to be employed in railways and other means of transport.
- The Child Labour (Prohibition and Regulation) Act, 1986: It restricts the employment of minors in specific occupations and controls the working conditions of children who are not forbidden from working.
- The Mines Act, 1952: A person younger than 18 years of age is not allowed to work in mines.
- The Factories Act, 1948: Prescribes certain restrictions and proper procedures for employing children above the age of 14 years.
- The Plantation Labour Act, 1951: It fixes the minimum age of employment and further lays down provisions for periodical fitness check-ups for children above the minimum age who are employed.
- The Motor Transport Workers Act, 1961: It prohibits the employment of children under the age of 15 years in the motor transport sector.
- The Apprentices Act, 1961: It prohibits children below 14 years to undergo apprenticeship training.
- The Beedi and Cigar Workers (Condition of Employment) Act, 1966: It prohibits the employment of children below 14 years of age in any industrial premises manufacturing bidis and cigars.
RELATED LAWS AND ACTS:
THE EMPLOYMENT OF CHILDREN ACT, 1938:
This act was enacted for regulating the employment of children in specific industrial establishments. But this act was amended by The Employment of Children (Amendment) Act, 1978.
Prohibition of employment:
According to this act, no children who have not completed 15 years of age should be allowed to work at works which are related to port authority within its limits, building and construction industries. Also, no children are allowed to work at work which is related to the transport of passengers, goods and mail by the railway industry.
Other works on railway premises are also prohibited such as cinder picking, clearing of ash, catering occupations, construction of railway stations and any other work near the railway lines.
Permission to work:
Those children who are older than the age of 15 but are younger than 17 can work in the above-mentioned places only if the rest hours are a minimum of 12 hours between consecutive days and the rest hours must be of 7 consecutive hours between 10 p.m. and 7 a.m. Further, this act allows the competent authority to declare this provision to be non-operative in case of emergency or in the public interest.
Any child who has not completed the 14 years of his age shall be allowed to work in any workshop. But this provision of the act is not applicable to any workshop where any process is carried on by the occupier with the aid of his family only and without employing hired labour or to any school established by, or receiving assistance or recognition from a State Government. Also, this act allows the government to amend this schedule.
The Act requires the occupier to notify the Inspector before carrying on work in the workshop. The notice should contain the specified information
Dispute of age:
In the absence of a certificate by a medical authority, the dispute regarding age shall be referred by the Inspector to the medical Inspector for decision.
The employer is required to maintain the prescribed register and to notify an Abstract of the Act conspicuously on the notice board.
Defaulting employer/person shall be punishable. This punishment can vary from simply one month of imprisonment or with a fine of up to five hundred rupees or in some instances both are applicable.
With the previous sanction of the Inspector, the prosecution can be instituted in the Court of presidency Magistrate or Magistrate of the First Class.
Powers to make rules:
The competent Authority is authorized to notify rules relating to the specified matters.
THE PLANTATION LABOR ACT, 1951:
After the Recommendations of the labour investigation committee, the Plantation of Labour Act, 1951 was enacted by the Indian Parliament. The objective of this act was to provide welfare to the plantation labour by regulating the conditions of work on plantations. The act made it mandatory for employers to provide both health and welfare facilities to labour.
In the plantation industry, there were free housing and medical aid, according to the prescribed norms are provided at the cost of employers without any contribution being made by workers or the government. The acts cover the entire country it applies to all Tea, coffee, rubber, cocoa, palm oil etc. This act also covers workers employed in offices Hospitals and schools on the plantation, and it does not apply to the factory premises[ix].
The important provision of the act pertaining to:
Health and welfare:
Health and welfare contain medical facilities which every plantation worker required. The state government prescribes these facilities. The next includes Housing, the act makes it mandatory to provide necessary housing to employers for those who have six months of continuous work and those who are residing outside the plantation.
The health and welfare facility also includes recreation facilities for workers and children employed in the plantations. The last and most important facility is Education. The state government are empowered to make rules and regulations regarding education for working children.
Hours of work
According to Act, no adult worker is required or allowed to work in any plantation over 48 hours a week and no adolescent for more than 27 hours a week. And if any adult worker works more than 48 hours then he shall be entitled to twice the rate of ordinary wages. No worker shall be allowed to work for more than 9 hours on any day and more than 54 hours a week. Also, the act state that at least a half-hour rest interval each day after 5 hours of work is provided to workers. The act also provides that no woman or child worker be employed in any plantation except between 6 a.m. to 7 p.m. without permission of the State Government[x].
Annual leave with wages
The Plantation labour act 1951 provides that, every worker is allowed annual leave with wages calculated at the rate of one day for every 20 days of work for an adult worker and in the case of a young person one day for every 15 days of work. Also, every worker is permitted to accumulate leave for up to a maximum of 30 days.
In India, a large number of people work in plantations. These people come from a Triable and marginalized sector, therefore these workers are exploited and underpaid by employers. The emergence of the Plantation of Labour act provides these workers protection and certain basic facilities which help to regulate the conditions of service in Plantation.
In this act, many important provisions including healthcare, education hours of work, wages etc. are regulated according to workers’ interests. Also, the state government have been empowered to provide welfare facilities to improve the conditions of plantation workers, it also helped in creating conditions for organizing the workers and raising trade unions.
THE CHILD LABOUR (PROHIBITION AND REGULATION) ACT, 1986:
The main objective behind the child labour act 1986 was to abolish child labour from certain industries completely the child labour act 1938 was repealed in 1986 and this act was divided into four parts in which I part mention Definition, Part II states about the prohibition of employment of children in a certain occupation and processes, Part III is an important part which compromises of section 6 to section 13 and list down the conditions of work of children. There are specifically 16 occupations and 65 processes mentioned in this act that are dangerous to the children’s lives and health[xi]. Occupations prohibited under part I For children under 14 years are:
- Transport any kind of goods or mails by railway,
- Cleaning in the Railway premises, work-related to construction,
- Occupation within the limits of any port,
- Work which includes selling crackers and fireworks in shops having a temporary license,
- Work in
Part III in this act mentioned hours and periods of work in which the maximum limit of hours before he has had an interval for rest.
Period of work:
The act decided a prescribed time limit of work and no child employee shall allow working in any establishment over the number of hours decided by the act. Child labour shall not work more than six hours and child labour shall not be permitted to work between 7 p.m. to 8 a.m. as well as to work overtime. In one day, children can work only at one place.
Each employed child mandatorily be allowed holiday in a week and it must be for the whole day and the notice of that must be shown in a distinct place of the establishment. The issued notice should be permanent and should not be altered more than once in three months.
Notice to inspector
It is a notice to the inspector within the local limits of the employer establishment. The employer needed to send a notice to the inspector in which includes the name of the place where the child work, the name of the employer, the address of the establishment and details of the nature of work.
Maintenance of Register
The occupier or employer needs to maintain a register that contains all the information regarding children that is the name, date of birth, number of hours, nature of employment etc. who work under the employer in his establishment
Notification Regarding Health and safety
The government issued a Notification regarding the health and safety of children who are employed to work. It includes several points as follows
- The place of work where children work or are employed should be clean and free from any kind of nuisance.
- There must be a proper, place for the disposal of waste and effluent,
- Lighting must be proper in the place of work,
- Children are not allowed to work near machinery,
- Nit water for drinking should be provided,
- In case any fire is used in work proper precautions must be taken,
- The facility of toilets must be there in the place of work,
- Proper stairs shall be made for each floor,
- Proper maintenance of the building and machinery shall be taken.
Part IV miscellaneous mentions penalties for the employer when an employer permits to work a child in contravention of the provision of section 3 then the employer should be liable for punishment with imprisonment for a term may extend to one year of a fine of 10000 Rupees which may extend to 20000 or with both, the employer repeats the same offence in future, then he shall be punished.
The punishment is of imprisonment of minimum 6 months to maximum 2 years if the employee has failed to give notice under section 9 of or fails to maintain a register comprising the details of child employees as required by section 11 of the act and if he makes False entry or fails to display notice, he shall be punished with simple imprisonment which makes 1month or with fine of ten rupees thousand or with both[xii].
Child labour (Prohibition and Regulation) Act 1986 prohibits children from working in hazardous employment[xiii]. It also punishes if an employer allowed a child to work in dangerous areas.
INDIAN LABOUR LAWS:
In the years 2019 and 2020, the Indian Parliament passed 4 labour laws which replaces 44 labour laws which existed till the year 2019. Those 4 laws are The Industrial Relations Code, 2020; The Code on Social Security, 2020; The Occupational Safety, Health and Working Conditions Code, 2020 and The Code on Wages, 2019.
PEOPLE’S UNION FOR DEMOCRATIC RIGHTS V. UNION OF INDIA:
- Appellant party: People’s Union for Democratic Rights and Others.
- Respondent party: Union of India and Others
In Delhi, there were children who were below the age of 14 and they were working on construction sites. Workers who were working on ASIAD-82 sites were recruited by agents from backward villages of Orissa, Bihar, West Bengal, Madhya Pradesh, Andhra Pradesh and Rajasthan.
In July and August of 1981, a fact-finding team of the People’s Union for Democratic Rights visited some of the sites and they found that fixed hours of working were absent, and workers were not getting less than minimum daily wages.
Workers had to live in hovels, their children were dying of malnutrition. Also, workers were frequently becoming the victims of accidents at the sites. These workers were forced to complete the ASIAD project by November 19. So, PUDR filed a PIL before the Supreme Court on November 16, 1981.
Whether the writ petition can be maintainable against the private individual under Article-32 of the Indian Constitution? And whether Article-21 of the Indian Constitution also includes the right to live with human dignity and the right to livelihood?
The government’s argument is unacceptably weak. Construction labour is a dangerous occupation, and children under the age of 14 shall not be employed in it, even though it is not directly included in the schedule of the Employment of Children Act, 1938. The state government is urged to take urgent action to include building projects in the Act’s timetable and guarantee that Article 24 is not breached in any region of the nation[xiv]
C. MEHTA V. STATE OF TAMIL NADU:
- Appellant party: M.C. Mehta
- Respondent party: State of Tamil Nadu and Others
In the town named Sivakasi in Tamil Nadu, the state of child labour was highly disturbing. As a result, A solicitous lawyer, M.C. Mehta was concerned about the state of child labour. So, he filed a petition under Article 32 of the Indian Constitution. A large number of children were forced to work in hazardous match stick industries.
He found that the employment of children in hazardous match stick factories was immoral. It was also constitutionally invalid. After filing the petition, the respondent Government did not oppose the claims made by the appellant and submitted ideas to deplete the problems.
What can be the effective alternative means to curb the employment of children in hazardous labour?
Children under the age of 14 cannot be engaged in dangerous jobs, and the government must establish standards to protect the social, economic, and humanitarian rights of children who work unlawfully in the public and private sectors. It also violates Article 24, as it is the state’s responsibility to provide children with free and compulsory education.
It was also ordered to set up a Child Labour Rehabilitation Welfare Fund and give each child Rs. 20,000 in compensation[xv].
To ensure the efficacious implementation of the aforementioned, the court ordered that[xvi]
- Within six months, the government must conduct a child labour survey.
- The formation of a criterion for analysing and watching the places of employment that are regarded to be hazardous for employment.
- At the same place where the child was worked, employment should be granted to the parents or any adult in the family.
- In circumstances when the parents or any adult in the family is unable to find work, a sum of Rs. 85,000 should be granted to the child’s parents for the child’s wellbeing. If the parents fail to send their child to school, the payment will be stopped.
- The child’s education should be assured at a reputable school or facility.
- The inspectors the concerned shall ensure that education is provided free of cost, as mandated under Article 45 of the Indian Constitution.
since time immemorial, the practice of exploitation is largely present in India. For example, there were many lower caste peoples considered ‘Untouchables’. They were exploited by people of the upper caste. Such practices are still carried out today. Across many industries many workers, many migrants are forced to work and many workers are in debt bondage.
Such workers have to do work as they have no other sources of income. In many industries and factories, although fatal works need to be done, necessary security precautions aren’t taken as the workers agree to work.
Workers do so because a large number of workers are from poor families, they leave their home villages and come to big cities to earn money. Due to a lack of education and skills, they have to do work even if it possesses a threat to their life to earn bread and butter for their families.
There are a lot of children less than 14 years of age who have to work in factories which is a very shameful fact despite we have Children Education law. Children are forced to work due to the poor condition of the family. Lack of education and other facilities can also be one of the reasons behind child labour. Children born in labour families are also automatically forced to do work.
The practice of exploitation is a stain on democratic society. Though there are various laws made in pursuance of articles 23-24 still there is no awareness regarding exploitation and forced labour, bondage labour, and human trafficking continues to exist. The only good education system, awareness among people, employment opportunities and strict implementation of the law can cure this evil practice of exploitation.
[i] Amisha, Right Against Exploitation | Article 23 & 24 of the Constitution, LEXFORTI (Apr. 14, 2021), https://lexforti.com/legal-news/right-against-exploitation-article-23-24/
[ii] INDIA CONST. art. 23(1)
[iii] INDIA CONST. art. 23(2)
[iv] Neha Gurani, Rights Against Exploitation, IPLEADRES, (Jun. 17, 2019), https://blog.ipleaders.in/right-against- exploitation/#:~:text=%20Features%20of%20Article%2023%20%201%20Right,which%20are%20prohibited% 20under%20Article%2023.%20More%20
[vi] INDIA CONST. art. 24
[vii] INDIA CONST. art. 39(e)
[viii] INDIA CONST. art. 39(f)
[ix] REPORT ON THE WORKING OF THE PLANTATIONS LABOUR ACT, 1951 FOR THE YEAR 2012∗,
%20Act%20was%20enacted%20in%201951,the%20provisions%20of%20the%20Factories%20Act%2C%2019 48%20apply (last visited Nov. 10, 2021)
[x] REPORT ON THE WORKING OF THE PLANTATIONS LABOUR ACT, 1951 FOR THE YEAR 2012∗,
%20Act%20was%20enacted%20in%201951,the%20provisions%20of%20the%20Factories%20Act%2C%2019 48%20apply (last visited Nov. 10, 2021)
[xi] Child Labour laws in India, IPLEADERS, (Aug. 7, 2019), https://blog.ipleaders.in/child-labour-laws-in-india/
[xii] The Child Labour (Prohibition and Regulation) Act, 1986, No. 61, Acts of Parliament, 1986 (India)
[xiii] Child Labour laws in India, IPLEADERS, (Aug. 7, 2019), https://blog.ipleaders.in/child-labour-laws-in-india/
[xiv] Neha Gurani, Rights Against Exploitation, IPLEADRES, (Jun. 17, 2019), https://blog.ipleaders.in/right-against- exploitation/#:~:text=%20Features%20of%20Article%2023%20%201%20Right,which%20are%20prohibited% 20under%20Article%2023.%20More%20
[xv] Neha Gurani, Rights Against Exploitation, IPLEADRES, (Jun. 17, 2019), https://blog.ipleaders.in/right-against- exploitation/#:~:text=%20Features%20of%20Article%2023%20%201%20Right,which%20are%20prohibited% 20under%20Article%2023.%20More%20
[xvi] Sanchita Makhija, M.C. Mehta v. State of Tamil Nadu and Others, INDIANLAWPORTAL (Aug. 9, 2020), https://indianlawportal.co.in/m-c-mehta-v-state-of-tamil-nadu-and-others/