Article 23
Article 23 enacts a very important fundamental right in the following terms:
“Art. 23: Prohibition of traffic in human beings and forced labour–
(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.
(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.
Now many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State.
Scope of 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. The sweep of Article 23 is wide and unlimited and it strikes at traffic in human beings and begar and other similar forms of forced labour” wherever they are found. The reason for enacting this provision in the chapter on fundamental rights is to be found in the socio-economic condition of the people at the time when the Constitution came to be enacted.
Socio-Economic Condition and Measures adopted by Constitutional Makers
The Constitution makers, when they set out to frame the Constitution, found that they had the enormous task before them of changing the socio- economic structure of the country and bringing about socioeconomic regeneration with a view to reaching social and economic justice to the common man. Large masses of people, bled white by well-nigh two centuries of foreign rule, were living in abject poverty and destitution with ignorance and illiteracy accentuating their helplessness and despair. The society had degenerated into a status-oriented hierarchical society with little respect for the dignity of individual who was in the lower rungs of the social ladder or in an economically impoverished condition.
The political revolution was completed and it had succeeded in bringing freedom to the country but freedom was not an end in itself, it was only a means to an end, the end being the raising of the people to higher levels of achievement and bringing about their total advancement and welfare. Political freedom had no meaning unless it was accompanied by social and economic freedom and it was therefore necessary to carry forward the social and economic revolution with a view to creating social economic conditions in which everyone would be able to enjoy basic human rights and participate in the fruits of freedom and liberty in an egalitarian social and economic framework.
It was with this end in view that the constitution makers enacted the Directive Principles of State Policy in Part IV of the Constitution setting out the constitutional goal of a new socio-economic order. Now there was one feature of our national life which was ugly and shameful and which cried for urgent attention and that was the existence of bonded or forced labour in large parts of the country. This evil was the relic of feudal exploitative society and it was totally incompatible with the new egalitarian socio-economic order which, “We the people of India” were determined to build and constituted a gross and most revolting denial of basic human dignity.
It was therefore necessary to eradicate this pernicious practice and wipe it out altogether from the national scene and this had to be done immediately because with the advent of freedom, such practice could not be allowed to continue to blight the national life any longer. Obviously, it would not have been enough merely to include abolition of forced labour in the Directive Principles of State Policy, because then the outlaying of this practice would not have been legally enforceable and it would have continued to plague our national life in violation of the basic constitutional norms and values until some appropriate legislation could be brought by the legislature forbidding such practice.
The Constitution makers therefore decided to give teeth to their resolve to obliterate and wipe out this evil practice by enacting constitutional prohibition against it in the chapter on fundamental rights, so that the abolition of such practice may become enforceable and effective as soon as the Constitution came into force. This is the reason why the provision enacted in Article 23 was included in the chapter on fundamental rights. The prohibition against “traffic in human beings and begar and other similar forms of forced labour” is clearly intended to be a general prohibition, total in its effect and all pervasive in its range and it is enforceable not only against the State but also against any other person indulging in any such practice.
The meaning of ‘Traffic in human beings and beggar and other similar forms of forced labour’
The question then is as to what is the true scope and meaning of the expression “traffic in human beings and begar and other similar forms of forced labour” in Article 237 What are the forms of ‘forced labour’ prohibited by that Article and what kind of labour provided by a person can be regarded as ‘forced labour’ so as to fall within this prohibition? When the Constitution makers enacted Article 23 they had before them Article of the Universal Declaration of Human Rights but they deliberately departed from its language and employed words which would make the reach and content of Article 23 much wider than- that of Article 4 of the Universal Declaration of Human Rights.
They banned ‘traffic in human beings which is an expression of much larger amplitude than “slave trade” and they also interdicted “begar and other similar forms of forced labour”. The question is what is the scope and ambit of the expression ‘begar and other similar forms of forced labour?” In this expression wide enough to include every conceivable form of forced labour and what is the true scope and meaning of the words ”forced labour?”
The Meaning of ‘Begar’
The word ‘begar’ in this Article is not a word of common use in English language. It is a word of Indian origin which like many other words has found its way in the English vocabulary. It is very difficult to formulate a precise definition of the word begar’ but there can be no doubt that it is a form of forced labour under which a person is compelled to work without receiving any remuneration.
Molesworth describes ‘begar’ as “labour or service exacted by a government or person in power without giving remuneration for it.”
Wilson’s glossary of Judicial and Revenue Terms gives the following meaning of the word ‘begar’:
“a forced laborer, one pressed to carry burthens for individuals or the public. Under the old system, when pressed for public service, no pay was given. The Begari, though still liable to be pressed for public objects, now receives pay: Forced labour for private service is prohibited.”
“Begar” may therefore be loosely described as labour or service which a person is forced to give without receiving any remuneration for ‘it.
‘Begar’ is thus clearly a film of forced labour. Now it is not merely ‘begar’ which is unconstitutionally prohibited by Article 23 but also all other similar forms of forced labour. This Article strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. The practice of forced labour is condemned in almost every international instrument dealing with human rights.
It is interesting to find that as far back as 1930 long before the Universal Declaration of Human Rights came into being, International Labour organisation adopted Convention No. 29 laying down that every member of the International Labour organisation which ratifies this convention shall “suppress the use of forced or compulsory labour in all its forms” and this prohibition was elaborated in Convention No. 105 adopted by the International Labour organisation in 1957.
The words “forced or compulsory labour” in Convention No. 29 had of course a limited meaning but that was so on account of the restricted definition of these words given in Article 2 of the Convention. Article 4 of the European Convention of Human Rights and Article 8 of the International Covenant on Civil and Political Rights also prohibit forced or compulsory labour.
People’s Union for Democratic Rights v. Union of India (1982)
In this case, the court said, Article 23 is in the same strain and it enacts a prohibition against forced labour in whatever form it may be found. We are clear of the view that Article 23 is intended to abolish every form of forced labour. The words “other similar forms of forced labour are used in Article 23 not with a view to importing the particular characteristic of ‘begar’ that labour or service should be exacted without payment of any remuneration but with a view to bringing within the scope and ambit of that Article all other forms of forced labour and since ‘begar’ is one form of forced labour, the Constitution makers used the words “other similar forms of forced labour.”
If the requirement that labour or work should be exacted without any remuneration were imported in other forms of forced labour, they would straightaway come within the meaning of the word ‘begar’ and in that event there would be no need to have the additional words “other similar forms of forced labour.”
These words would be rendered futile and meaningless and it is a well-recognized rule of interpretation that the court should avoid a construction which as the effect of rendering any words used by the legislature superfluous or redundant. The object of adding these words was clearly to expand the reach and content of Article 23 by including, in addition to ‘begar’, other forms of forced labour within the prohibition of that Article.
Every form of forced labour ‘begar’ or otherwise, is within the inhibition of Article 23 and it makes no difference whether the person who is forced to give his labour or service to another is remunerated or not. Even if remuneration is paid, labour supplied by a person would be hit by this Article if it is forced labour, that is, labour supplied not willingly but as a result of force or compulsion.
Take for example a case where a person has entered into a contract of service with another for a period of three years and he wishes to discontinue serving such other person before the expiration of the period of three years. If a law were to provide that in such a case the contract shall be specifically enforced and he shall be compelled to serve for the full period of three years, it would clearly amount to forced labour and such a law would be void as offending Article 23. That is why specific performance of a contract of service cannot be enforced against an employee and the employee cannot be forced by compulsion of law to continue to serve the employer.
Of course, if there is a breach of the contract of service, the employee would be liable to pay damages to the employer but he cannot be forced to continue to serve the employer without breaching the injunction of Article 23.
It is therefore clear that even if a person has contracted with another to perform service and there is consideration for such service in the shape of liquidation of debt or even remuneration, he cannot be forced by compulsion of law or otherwise to continue to perform such service, as that would be forced labour within the inhibition of Article 23. This Article strikes at every form of forced labour even if it has its origin in a contract voluntarily entered into by the person obligated to provide labour or service.
Reference
People’s Union for Democratic Rights v. Union of India (1982)