Article 23 provides that:
“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.”
Fundamental right against social and economic exploitation
Article 23(1) provides an enforceable fundamental right against social and economic exploitation. It aims to prohibit human trafficking, “begar”, and “other similar forms of forced labour”. Like Articles 15(2) and 17, it is enforceable both against the State and non-state actors.
At the same time, the scope of the provision is wide, as it has left the term “begar” undefined, and supplemented by the phrase “other similar forms of forced labour”. The “other similar forms” can be many. The framers of the Constitution consciously left the terms undefined so that future interpretation is not restrictive.
Interestingly, the foundations of Article 23 were laid even prior to the discussions in the Constituent Assembly. In his work titled “States and Minorities” (1947),[1] Dr Ambedkar conceptualized the interlinkages between one’s economic condition and their ability to exercise fundamental rights. He wrote,
“The fear of starvation, the fear of losing a house, the fear of losing savings if any, the fear of being compelled to take children away from school, the fear of having to be a burden on public charity, the fear of having to be burned or buried at public cost are factors too strong to permit a man to stand out for his Fundamental Rights.”
In his view, “The unemployed are thus compelled to relinquish their Fundamental Rights for the sake of securing the privilege to work and to subsist.”
Dr. Ambedkar proposed that the rights of individuals should be protected from exploitation by adopting a favourable constitutional framework.
The intellectual background of Article 23 lies in what Dr Ambedkar was explaining – to facilitate the citizens in exercising their fundamental rights.[2] Exploitative socio-economic practices can hinder the right to live a dignified life.
Discussion at Constituent Assembly
In adopting Article 23(1) in the Constitution, the framers were conscious of oppressive practices such as Slavery in the United States as well as domestic practices of exploiting labour of the Bahujan castes and poor sections of society.[3] Several members of the Constituent Assembly, who came from the Scheduled Caste communities expressed their support for Article 23, as they believed that such a provision would prevent economic exploitation of their community.
V.I. Muniswamy Pillai stated, “If there is any labour required for common purposes in the village, this most unfortunate fellow, the Harijan [Scheduled Caste], is always caught hold of to do all menial and inferior service.”[4]
By the provision, he was confident that the country would be “elevating a community that has been outside the pale of society”.
S. Nagappa gave examples of how “begar” was imposed on the Scheduled Castes:
“Sir, whenever cattle die; the owner of the cattle wants these poor Harijans to come and remove the dead cattle, remove the skins, tan them and make chappals and supply them free of cost. For this, what do they get? Some food during festival days. Often, Sir, this forced labour is practised even by the government.
For instance, if there is any murder, after the postmortem, the police force these people to remove the dead body and look to the other funeral processes. I am glad that hereafter this sort of forced labour will have no place. Then, Sir, this is practised in zamindaries also.
For instance, if there is a marriage in the zamindar’s family, he will ask these poor people, especially the Harijans, to come and white wash his whole house, for which they will be given nothing except food for the day… … whenever the big zamindar’s lands are to be ploughed, immediately he will send word for these poor people, the Harijans, the previous day, and say:
“All your services are confiscated for the whole of tomorrow; you will have to work throughout the day and night. No one should go to any other work.” In return, the zamindar will give one morsel of food to these poor fellows. Sir, this sort of forced labour is in practice in the 20th century in our so called civilised country.”[5]
Another member from the Scheduled Caste community, H.J. Khandekar, expressed his happiness “to see in the Constitution that begar and forced labour are abolished and the curse on untouchables from whom the begar and forced labour were taken has gone”.[6]
Raj Bahadur also gave examples how “begar” was practiced:
“I know how some of the Princes have indulged in their pomp and luxury, in their reckless life, at the expense of the ordinary man, how they have used the down-trodden labourers and dumb ignorant people for the sake of their pleasure. I know for instance how for duck shooting a very large number of people are roped in forcibly to stand all day long in mud and slush during cold chilly wintry days.
I know how for the sake of their game and people have been roped in large numbers for beating the lion so that the Princes may shoot it. I have also seen how poor people are employed for domestic and other kinds of labour, no matter whether they are ailing or some members of their family are ill. These people are paid nothing or paid very little for the labour extorted from them.”
He stated that Article 23 will free “downtrodden millions” from the handcuffs of exploitation.
T.T. Krishnamachari said that “some form of forced labour does exist in practically all parts of India, call it ‘begar’ or anything like that and in my part of the country, the tenant often times is more or less a helot attached to the land and he has certain rights and those are contingent on his continuing to be a slave.”
While the framers did not define the term “begar”, they largely referred to those practices, where the workers were either unpaid or paid very little for their jobs. “Begar” or bonded labour was entrenched in India’s social system, against which Article 23 makes a blow.
Supreme Court Rulings defining the Term ‘Begar’
Over the years, Supreme Court has taken a strict view against bonded labour in existence in society.
People’s Union for Democratic Rights v. Union of India
The Court in People’s Union for Democratic Rights v. Union of India[7] considered the scope of the terms “begar” and “forced labour” under Article 23(1). The Court entertained a letter as a writ petition, which sought compliance with the provisions of labour laws in relation to workmen employed in the construction work of projects connected with the Asian Games. The petitioner contended that the labourers were also not paid their minimum daily wages, and were not provided with proper living conditions. The Court observed that the issue related to a “breach of a fundamental right” under Article 23.
The judgment noted that the framers of the Constitution adopted Article 23 to put an enforceable obligation on the State to end bonded labour, which was “the relic of feudal exploitative society” and “incompatible with the new egalitarian socio economic order”. It was further stated that the term “begar” is of Indian origin, referring loosely to “labour or service which a person is forced to give without receiving any remuneration for it”.
The judgment held that the phrase “forced labour” is of wide amplitude and would cover instances “where a person provides labour or service to another for remuneration which is less than the minimum wage”. “Forced labour” may manifest in many forms. It was held that labour provided as a result of any kind of force or compulsion would be counted as “forced labour” under Article 23(1). It was held:
“What Article 23 prohibits is “forced labour” that is labour or service which a person is forced to provide and “force” which would make such labour or service “forced labour” may arise in several ways. It may be physical force which may compel a person to provide labour or service to another or it may be force exerted through a legal provision such as a provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution.
Any factor which deprives a person of a choice of alternatives and compels him to adopt one particular course of action may properly be regarded as “force” and if labour or service is compelled as a result of such “force”, it would be “forced labour”. Where a person is suffering from hunger or starvation, when he has no resources at all to fight disease or to feed his wife and children or even to hide their nakedness, where utter grinding poverty has broken his back and reduced him to a state of helplessness and despair and where no other employment is available to alleviate the rigour of his poverty, he would have no choice but to accept any work that comes his way, even if the remuneration offered to him is less than the minimum wage.
He would be in no position to bargain with the employer; he would have to accept what is offered to him. And in doing so he would be acting not as a free agent with a choice between alternatives but under the compulsion of economic circumstances and the labour or service provided by him would be clearly “forced labour”.
It was held that non-payment of minimum wage to workmen in the Asian Games project was a violation of their fundamental right under Article 23. The judgment also laid down an important constitutional principle that when fundamental rights such as under Articles 17 or 23 are violated by private individuals, then “it is the constitutional obligation of the State to take necessary steps for the purpose of interdicting such violation and ensuring observance of the fundamental right by the private individual who is transgressing the same”.
Sanjit Roy v. State of Rajasthan
The interpretation of Article 23 laid down in PUDR was relied upon in a subsequent decision in Sanjit Roy v. State of Rajasthan.[8]
A writ petition was filed seeking payment of minimum wages to women workers belonging to Scheduled Castes, who were engaged in a construction project of the Rajasthan government, under the Minimum Wages Act, 1948. It was argued by the State government that the construction project was a famine relief work, and payment of minimum wages in such projects was exempted by the Rajasthan Famine Relief Works Employees (Exemption Act from Labour Law) Act, 1964. The Court declared the Exemption Act, in so far as it excluded the applicability of the Minimum Wages Act 1948 to workmen employed on famine relief work and permitted the payment of less than the minimum wage to such workmen as violative of Article 23.
It was held: “The State cannot be permitted to take advantage of the helpless condition of the affected persons and extract labour or service from them on payment of less than the minimum wage. No work of utility and value can be allowed to be constructed on the blood and sweat of persons who are reduced to a state of helplessness on account of drought and scarcity conditions.
The State cannot under the guise of helping these affected persons extract work of utility and value from them without paying them the minimum wage.”
Justice Pathak wrote a concurring opinion, holding the Exemption Act to be violative of Article 14. The Court directed the State government to pay the arrears of the difference between the minimum wage and the actual wage paid to the construction workers.
Labourers Working on Salal Hydro Project v. State of Jammu & Kashmir
It was pointed out to Supreme Court in Labourers Working on Salal Hydro Project v. State of Jammu & Kashmir[9] that a large number of migrant workmen from different States working on a hydro-electric project were denied the benefit of labour laws and were exploited by the contractors. Supreme Court directed the Union government to ensure that its senior officers carry out thorough inspections of the project at regular intervals to verify whether the labour laws are being properly followed, particularly concerning workmen employed, either directly or indirectly, by the contractors or sub-contractors.
Bandhua Mukti Morcha v. Union of India
In Bandhua Mukti Morcha v. Union of India,[10] the petitioner had highlighted the issue of bonded labourers in stone quarries of Faridabad district and their inhuman living conditions. Referring to the provisions of the Bonded Labour System (Abolition) Act 1976, the judgment discussed the meaning of “bonded labour”.
According to the Act, a bonded labourer is someone who has incurred or is presumed to have incurred a bonded debt. A bonded debt refers to an advance received or presumed to have been received by a bonded labourer under or in pursuance of the bonded labour system.
The inference of this definition, according to the State government, was that bonded labourers must first prove that they are providing forced labour in consideration of an advance or other economic consideration received by them. The Court rejected this reasoning, stating that it would be “cruel to insist” that a bonded labourer “should have to go through a formal process of trial with the normal procedure for recording of evidence.”
It was further observed that “a bonded labourer can never stand up to the rigidity and formalism of the legal process due to his poverty, illiteracy and social and economic backwardness and if such a procedure were required to be followed, the State Government might as well obliterate this Act from the statute book”. The Court also noted that statistically, “most of bonded labourers are members of Scheduled Castes and Scheduled Tribes or other backward classes”.
The judgment held that whenever a labourer is made to provide forced labour, the presumption would be that it is consideration of an advance or other economic consideration received by him, and he is thus a bonded labourer. This presumption may, however, be rebutted by the employer or the State Government by providing satisfactory material. The Court reiterated the constitutional obligation of the Union government and the State government to ensure observance of various social welfare and labour laws enacted for the benefit of the workmen.
The State government was directed “to take up the work of identification of bonded labour as one of their top priority tasks and to map out areas of concentration of bonded labour”. The concurring opinion regarded Article 23 as “a vital constituent of the Fundamental Rights”.
Pursuant to this Court’s decision in Bandhua Mukti Morcha, 135 bonded labourers were released from bondage in stone quarries of Faridabad district, under the provisions of the Bonded Labour System (Abolition) Act, 1976. However, they were not rehabilitated even after a lapse of several months.
Neeraja Chaudhary v. State of Madhya Pradesh
This inaction of the State government was brought before Supreme Court in Neeraja Chaudhary v. State of Madhya Pradesh.[11] The Court directed the State government to provide rehabilitative assistance to these 135 freed bonded labourers within one month. It noted with compassion, “They have waited too long; they cannot wait any longer”. Supreme Court also directed the State government to ascertain within its territory whether there were any more bonded labourers or not, by applying the principle laid down in Bandhua Mukti Morcha.
It was reiterated, “Whenever it is found that any workman is forced to provide labour for no remuneration or nominal remuneration, the presumption would be that he is a bonded labourer unless the employer or the State Government is in a position to prove otherwise by rebutting such presumption.”
P. Sivaswamy v. State of Andhra Pradesh
The issue of bonded labourers in stone quarries in several districts of Andhra Pradesh was highlighted before Supreme Court in P. Sivaswamy v. State of Andhra Pradesh.[12] The Court emphasized on “effective rehabilitation” of bonded labourers. It was stated, “Uprooted from one place of bonded labour conditions the persons are likely to be subjected to the same mischief at another place”. The Court appealed for “requisite social consciousness”, where it is “the obligation of every citizen to cooperate” to bring an end to bonded labour.
State of Gujarat v. Hon’ble High Court of Gujarat
In State of Gujarat v. Hon’ble High Court of Gujarat,[13] a three-judge Bench dealt with the question whether prisoners, who are required to do labour as part of their punishment should be paid minimum wages for such work. Supreme Court held that jail authorities are “enjoined by law to impose hard labour” on convicted prisoners who were sentenced to rigorous imprisonment, irrespective of “whether he consents to do it or not”.
However, undertrials, detainees with simple imprisonment, or even detenus who are kept in jails as preventive measures cannot be “asked to do manual work during their prison term.”
Justice KT Thomas, speaking for the Court, held that “a directive from the court under the authority of law to subject a convicted person (who was sentenced to rigorous imprisonment) to compulsory manual labour gets legal protection under the exemption provided in Clause (2) of Article 23 of the Constitution, as it “serves a public purpose” of reforming the convict and rehabilitating them in future with savings earned from such labour.
The Court held that a prisoner “should be paid equitable wages for the work done by them”. It directed the State to fix the quantum of equitable wages payable to prisoners, which would be calculated after deducting the expenses incurred for food and clothes of the prisoners from the minimum wage rates.
However, in his concurring opinion, Justice D.P. Wadhwa differed with Justice Thomas’ invocation of Article 23. According to him, “there will be no violation of Article 23 if prisoners doing hard labour when sentenced to rigorous imprisonment are not paid wages”. He, however, observed that the State is free to enact legislation for granting wages to prisoners subject to hard labour under courts’ orders, for their beneficial purpose or otherwise.
Justice M.M. Punchhi, in his concurrence with Justice Thomas, made no comment on the application of Article 23. The inference of this judgment, however, is not that imposing mandatory labour on convicts is entirely immune from the operation of Article 23. Reading Article 23 with Article 21 and the decision in Sunil Batra (II),[14] a convict cannot be subjected to “allotment of degrading labour”.
Public Union for Civil Liberties v. State of Tamil Nadu
In Public Union for Civil Liberties v. State of Tamil Nadu,[15] when the issue of bonded labourers and their exploitation was again brought to the notice of this Court, a two-judge Bench issued a fresh set of directives to the State. Among other directions the bench directed proper and effective implementation of the Minimum Wages Act, the Workmens’ Compensation Act, the Inter-State Migrant Workmen Act, and the Child Labour (Prohibition and Regulation) Act.
Gujarat Mazdoor Sabha v. State of Gujarat
A three-judge Bench of Supreme Court in Gujarat Mazdoor Sabha v. State of Gujarat[16] adjudicated a challenge to two notifications issued by the Gujarat government under section 5 of the Factories Act, 1948, during the COVID19 pandemic. These notifications exempted factories from observing some of the obligations which employers have to fulfil towards the workmen employed by them. According to the notifications, among other provisions, all factories registered under the Act were exempted “from various provisions relating to weekly hours, daily hours, intervals for rest, etc. for adult workers”.
Justice DY Chandrachud authored the judgment, declaring that the notifications issued by the government during the pandemic were ultra vires and against the fundamental rights of labourers. The Court stated that “[t]o a worker who has faced the brunt of the pandemic and is currently laboring in a workplace without the luxury of physical distancing, economic dignity based on the rights available under the statute is the least that Supreme Court can ensure them.”
It was held that “[t]he notifications, in denying humane working conditions and overtime wages provided by law, are an affront to the workers’ right to life and rights against forced labour that are secured by Articles 21 and 23 of the Constitution.”
Summing Up
What emerges from the above discussion is that the broad scope of Article 23 can be invoked to challenge practices where no wages are paid, non-payment of minimum wages takes place, social security measures for workers are not adopted, rehabilitation for bonded labour does not happen, and in similar unfair practices. The State shall be held accountable even in cases where the violation of fundamental rights such as Article 23 is done by private entities or individuals.
Reference
Sukanya Shantha v. Union of India (2024)
[1] B.R. Ambedkar, “States and Minorities”, in Dr. Babasaheb Ambedkar: Writings and Speeches, Vol. 1, p. 393,
https://www.mea.gov.in/Images/CPV/Volume1.pdf [See Article II, Section I, Clause 9].
[2] Anurag Bhaskar, The Foresighted Ambedkar: Ideas That Shaped Indian Constitutional Discourse, Penguin
(2024), pp. 176-191
[3] B. Shiva Rao, Framing of India’s Constitution, Vol. 5, pp. 249-257.
[4] Constituent Assembly Debates (8 November 1948)
[5] Constituent Assembly Debates (3 December 1948)
[6] Constituent Assembly Debates (21 November 1949)
[7] (1982) 3 SCC 235
[8] (1983) 1 SCC 525
[9] (1983) 2 SCC 181
[10] (1984) 3 SCC 161
[11] (1984) 3 SCC 243
[12] (1988) 4 SCC 466
[13] AIR 1998 SC 3164
[14] 1979 INSC 271
[15] (2013) 1 SCC 585
[16] (2020) 10 SCC 459