Written by: Mr. Jayanta Boruah, Research Scholar, North-Eastern Hill University, Shillong
INTRODUCTION
Child labour is alleged to be a curse for humanity since it forces many children to surrender their childhood and to live in absolute darkness. It is assumed that because of child labour many children are denied access to better education, health care facilities and every other thing that are required by a child for natural development in a holistic environment.[1] Globally, 168 million child labourers were recorded in 2012 where the Asian and the Pacific regions hosted the maximum numbers of child labour. In India itself, 2011 census revealed that out of 259.6 million children 10.1 million were child labourers that amounted to 3.95% of total child population. Uttar Pradesh topped the list followed by Bihar and Madhya Pradesh to have the highest numbers of child labour in India. However, fortunately a downfall in the rates of child labour could be seen in 2011 as compared to 2001 while it must also be acknowledged that a change was also witnessed in the pattern of child labour in India where the rates of child labour decreased in the rural areas but started increasing in the urban areas.[2] Child labour has now been mostly prohibited in India under the legal framework where Article 23 of the Constitution of India is the most important provision besides other laws dealing with this matter.[3] This Article will therefore try to analyze the Role of Article 23 of the Indian Constitution in abolishing child labour in India.
CONCEPTUALIZING CHILD LABOUR
There are several views as regards the concept of child labour is concerned, summarizing which we can conclude that- a child labour is a child of age below 15 years who is working in order to gain some sort of remuneration either in cash or in kind, paid or unpaid which involves certain amount of exploitation of physical, mental, economic or social, being injurious to the wellbeing of such child.[4] Thus, it becomes clear that why child labour is often held as illegal in most of the civilized nations.
There appears to be several reasons behind prevalence of child labour in India, where poverty can be held as both the cause and consequence of child labour. It is again interlinked with increasing population where lack of resources coupled with incapability to avail such limited resources forces many of the parents to make their children work for earning some sort of income for the family. Further, huge migration of refugees in the contemporary globalized world is also increasing the issue of child labour in India. It is expected by the International Labour Organization that by increasing the standards of labourers and respecting their dignity along with providing them with better socio-economic conditions, including education, social protection, better working facilities, etc. will help in tackling this issue.[5] And for this reason, India has adopted several legal measures for abolishing child labour amongst which Article 23 of the Indian Constitution is the most important one.
ARTICLE 23 OF INDIAN CONSTITUTION IN THE ABLOSIHMENT OF CHILD LABOUR
Article 23 of the Constitution is basically for abolishing human trafficking and other forms of forced labour. Human trafficking means and includes buying and selling of human beings like goods and products for immoral purposes.[6] This Article further includes slavery. Even though it does not specifically deal with child labour but it inherently prohibits child labour and makes it a punishable offence under the law.[7]
The scope of this Article is not limited to Indian citizens only, since it provides protection to not only citizens but also to non-citizens and makes the State responsible to take steps for abolishing human trafficking and other forms of bonded labour. Its scope is even further expanded by providing individuals protection not only against the State but also against Private citizens or organizations from immoral trafficking, slavery and bonded labour. However, forced labour as a punishment for criminal offences is not prohibited under this Article.[8]
The Supreme Court of India by virtue of Public Interest Litigation (PIL) has brought new innovations in the field of Justice delivery to ensure protection of the basic fundamental rights of the poor and vulnerable sections of the society which includes even those who are forced to do child labour.[9] In a case,[10] the Supreme Court defined the scope of Article 23 where Bhagwati J was of the opinion that ‘forced labour’ means any service that a person is forced to provide and the ‘force’ that make such person to provide such services may arise in several ways. Such forces may arise from physical force that compels a person to provide services, or may be a legal force which binds a person to provide services on failing of which such person might be subjected to imprisonment or fines, or it may even arise due to poverty, want or destitution. Thus, it was held by Bhagwati that such force shall not only be construed to mean physical or legal force but shall also include within its scope the compulsion due to economic circumstances that compels an individual to provide services even for a remuneration that is far below minimum wages. The Court even held that any kind of labour which is provided against a remuneration below the minimum wages will amount to force labour under Article 23, thereby violating the Fundamental Rights of the concerned individual providing such labour and thus will enable such person to approach even to the Apex Court via- Article 32 for redressing the violation of such Fundamental Right.[11]
In Sanjit Roy v. State of Rajasthan,[12] the Apex Court again held that employment of any person for any service with remuneration below the minimum wages is a violation of the Fundamental Right of such person under Article 23 and also held that the labour provided by such person will come under the ambit of forced labour under Article 23. In the case of Bandhua Mukti Morcha v. Union of India[13], the Apex Court held that whenever a PIL Is filed alleging the existence of bonded or forced labour, the Government shall welcome such allegations since it provides the Government with the opportunity to examine the existence of such systems and to take steps for eradicating them. Further, it was held that forcing someone to work in an environment derogatory to the prescribed working standards for human beings and against the will of that person will violate such person’s Fundamental Right under Article 21 that provides every citizens of India the Right to live a life with human dignity free from exploitations.
In one another case,[14] even customary rules providing for one day’s free labour as a compulsory requirement was held to be in violation of Article 23(1). in Mukesh Advani v. State of M.P.,[15] the Supreme Court directed the Central Government to specify minimum wages for occupations in flag-stone in order to avoid exploitation of workmen under Article 23. Similarly, while upholding the validity of the exceptions to Article 23 that empowers State to impose services of compulsory nature for public purposes, it was held that such services are not in violation of Article 23 since they are neither making anyone beggar nor is causing traffic in human beings until and unless no discrimination is made on the grounds of religion, race, caste, etc.[16]
The Apex Court further stated that after any bonded labour is identified and freed, such bonded labour shall be addressed to proper rehabilitation measures including satisfaction of basic needs, since if rehabilitation is not provided then those released bonded labours will again be forced into the same nexus.[17]
CONCLUSION
Thus, on a careful analysis of the meaning and the few interpretations of Article 23 that were made by the Indian Judiciary, we can conclude that the scope of the term ‘forced labour’ is wide enough to include even child labour that is derogatory to the status of dignified living for children. The meaning of forced labour was interpreted to include those services that were rendered for remunerations below the minimum wages and those that were provided against the will of the service providers or in an inhuman condition which was held as a violation of Fundamental Rights of the workers including children workers not only under Article 23 but also under Article 21. However, if a child is working for a remuneration that is higher or as per the minimum wages and such work is been carried out under the minimum standards specified for workers, then such child labour might not be prohibited under Article 23 keeping in view the economic conditions or the family background of such child concerned. Further, the Apex Court also held that in cases where any person who has been rescued from forced labour as defined under Article 23 has a right to get proper rehabilitation from the concerned State. All these interpretations proved that Article 23 has a huge role to play for regulating child labour in India.
References
[1] Chapter III, Child Labour in India- Issues, Dimensions and Determinanats, Sodhganga (Jun 12, 2020, 01:43 AM) https://shodhganga.infilbnet.ac.in/bitstrem/10603/648/8/08_chapter3.pdf. [2] Child Labour in India, ILO Factsheet. [3] Chapter V, Constitutional Safeguards and Judicial Response Against the Exploitations of Child Labour, Sodhgange (Jun. 12, 2020, 02:43 AM) https://amu.ac.in/emp/studym/100000495.pdf. [4] Chapter II, Child Labour: Conceptual and Legal Dimensions, Sodhganga (Jun. 12, 2020, 02:12 AM) https://sg,infilbnet.ac.in/bitstream/10603/96487/11/11_chapter%202.pdf. [5] Ibid. [6] Raj Bahaduar v. Legal Remebrancer AIR 1953 Cal. 496. [7] H.M. Seevraj, Constitution of India (V.IN. Tripathi Private Ltd., Bombay). [8] J.N. Pandey, Constitutional Law of India, 237 (14th ed., Central Law Agency, Allahabad, 2014). [9] S.P. Gupta v. Union of India AIR 1982 SC 149. [10] People’s Union of Democratic India v. Union of India AIR 1982 SC 1473. [11] Ibid. [12] AIR 1983 SC 328. [13] AIR 1984 SC 802. [14] Kahason Thangkhul v. Simtri Shaili AIR 1961 Manipur 1. [15] AIR 1995 SC 1363. [16] Dulal Samanta v. D.M. Howarh AIR 1958 Cal. 365. [17] AIR 1982 SC 1099.
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