Beyond Bondage: How Articles 23 & 24 Uphold Human Freedom in India

Human dignity and personal freedom are fundamental tenets of any just society. In India, these core values are robustly enshrined and protected within the Constitution through the 'Right against Exploitation', comprising Articles 23 and 24.

This group of rights stands as a powerful constitutional safeguard, directly opposing practices that demean individuals and compromise their liberty.

Exploitation, by its very nature, contradicts the dignity of the individual proclaimed in the Preamble of the Constitution and is contrary to the provisions of Article 39(e) and (f) of the Directive Principles of State Policy, which aim to protect the health and strength of workers and children.

Essentially, the real objective of these two rights is to supplement the 'right to freedom' by comprehensively protecting the personal freedom of citizens.

Article 23(1) explicitly prohibits "traffic in human beings and begar and other similar forms of forced labour," declaring any contravention an offence punishable by law.

Complementing this, Article 24 specifically addresses child protection, stating that "No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment".

Importantly, these articles offer protection not just against the State, but also against exploitation by private citizens.

Together, Articles 23 and 24 form a critical bulwark against various forms of human degradation, asserting the invaluable worth and autonomy of every individual.

Eradicating Traffic in Human Beings and Forced Labour: Article 23

Central to India's commitment to human dignity is Article 23(1), which unequivocally states: "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".

This crucial article extends its protective ambit to individuals not only against the State but also against private citizens.

Parliament, under Article 35, is expressly authorised to make laws for punishing acts prohibited by this article.

Traffic in Human Beings: A Comprehensive Ban

The term "traffic in human beings" signifies the abhorrent practice of treating men and women as commodities – buying, selling, letting out, or otherwise disposing of them.

It encompasses various forms of exploitation, including immoral traffic in women or girls and subjecting children to immoral or similar practices. To combat this, the Suppression of Immoral Traffic in Women and Girls Act, 1956, was enacted and has been in operation.

Its validity, despite claims of infringing on the fundamental right to carry on a business, trade, or profession, was upheld in Shama v State of U.P. (AIR 1959 All. 57).

While 'slavery' is not explicitly mentioned, judicial interpretation leaves no doubt that the expression 'traffic in human beings' covers it, as observed in Dubar v Union of India (AIR 1952 Cal. 496).

Reinforcing this, Section 370 of the Indian Penal Code (IPC) prescribes punishment for anyone who imports, exports, removes, buys, sells, or disposes of any person as a slave.

The deeply problematic practice of Devadasis is also understood to fall under the umbrella of "traffic in human beings".

This was notably highlighted in Gaurav Jain v UOI (AIR 1997 SC 3021), a landmark case concerning the prevalence of prostitution and customary practices like Devdasis, Jogins, and Venkatasins in several states.

The Supreme Court emphatically declared that children of prostitutes possess a fundamental right to equality of opportunity, dignity, care, protection, and rehabilitation, enabling them to integrate into the social mainstream without any pre-stigma attached to them.

The Court further made significant suggestions, including treating these children as 'neglected juveniles' under the Juvenile Justice Act, rescuing them from "red-light areas" to 'juvenile homes' for rehabilitation, and stressing the State's mandatory obligation to establish such homes.

It also urged the Union and State Governments to evolve comprehensive procedures and principles for the rescue and rehabilitation of prostitutes and their children to effectively enforce their fundamental and human rights.

Begar and Other Forms of Forced Labour: Dignity Over Coercion

Begar refers to the act of compelling a person to perform work against their will, often without payment or with grossly inadequate remuneration.

Historically, this manifested in systems like the old zamindari system, where tenants were forced to render free service to landlords, or the sagri or hali system in parts of Rajasthan, where debtors provided labour to creditors until loans were repaid.

The courts have firmly rejected such customary practices; in Kahaosan Tangkhul v Simirei Shailei (AIR 1961 Manipur 1), a prevailing custom requiring each householder to offer a day's free labour to the village headman was held to be violative of Article 23.

The concept of "forced labour" extends beyond mere physical compulsion. Even if some remuneration is paid, labour can still be considered 'forced' if it is not willingly rendered6. This expansive interpretation was established by the Supreme Court in the pivotal 'Asiad case', P.U.D.R. v UOI (AIR 1982 SC 1473).

The Court gave a wide meaning to the word 'force', stating it includes not just physical or legal coercion but also the powerful compulsion arising from economic circumstances.

Thus, if a person, driven by dire need, is compelled to work for wages less than the minimum wage, or even agrees to pay a part of their wages to a middleman, it constitutes forced labour under Article 23.

Bonded labour, a particularly oppressive form of forced labour, is explicitly forbidden. As a direct consequence of Article 23, as many as twelve Acts previously sanctioning forced labour under certain circumstances became void upon the enactment of the Constitution.

Furthermore, The Bonded Labour System (Abolition) Act, 1976, played a crucial role in bringing freedom to countless individuals exploited through such systems.

Compulsory Service for Public Purposes: An Essential Balance

Article 23(2) provides a carefully crafted exception, stipulating that nothing in the article shall prevent the State from imposing compulsory service for public purposes.

Such services could include military or social service during emergencies like war or floods, or assisting the police in critical situations.

However, a vital safeguard is embedded: the State cannot discriminate on grounds only of religion, race, caste, or class while imposing such service.

For instance, conscription for social service, such as the spread of literacy, has been recognised as a public purpose (State v Jorawar AIR 1953 A.P. 18).

Despite this power, the State is not permitted to exploit the vulnerability of individuals. Even when undertaking famine relief work, the State cannot take advantage of people's helplessness by paying less than the minimum wage, as this would violate Article 23, a principle affirmed in Sanjit Roy v State of Rajasthan (AIR 1983 SC 328)

The issue of hard labour for prisoners generated considerable judicial debate in State of Gujarat v Hon’ble High Court of Gujarat (1998) 7 SCC 392)89. Justice Thomas held that exacting hard labour from convicted prisoners, if accompanied by equitable wages, does not constitute forced labour.

He reasoned that the objective of 'reformation', a public purpose in modern penal thought, allows for the imposition of hard labour with minimum wages under Article 23(2).

However, he clarified that under-trials, persons sentenced to simple imprisonment, and those detained under preventive detention laws cannot be compelled to perform manual work, though they may be permitted to work voluntarily.

In a partial dissent, Justice Wadhwa argued that hard labour as part of a rigorous imprisonment sentence cannot be equated with begar or forced labour, nor is it compulsory service for public purpose under Article 23(2).

He posited that even the non-payment of wages for such labour would not violate Article 23(1), with wages being payable only under the provisions of the Prisons Act.

This robust legal framework under Article 23 unequivocally bans the most egregious forms of human exploitation, upholding the fundamental right to live with dignity and freedom. Moving further to protect our youngest citizens, the Constitution provides specific safeguards through Article 24.

Safeguarding Childhood from Exploitation: The Mandate of Article 24

While Article 23 addresses the exploitation of all individuals, the Constitution dedicates a specific provision to protect our most vulnerable citizens: children.

Article 24 explicitly states that "No child below the age of 14 years shall be employed to work in any factory or mine or engaged in any other hazardous employment".

This direct prohibition is a cornerstone of child protection, reflecting a deep-seated constitutional commitment to their health, strength, and overall well-being.

This vital provision resonates strongly with other constitutional mandates, particularly Article 39(e) and (f) of the Directive Principles of State Policy, which call upon the State to ensure that the tender age of children is not abused and that they are given opportunities to develop in a healthy manner and in conditions of freedom and dignity.

Beyond national laws, Article 24 aligns seamlessly with international human rights concepts and the norms established by organisations like the United Nations and the International Labour Organisation.

India’s ratification of the International Convention on the Rights of the Child on 20th November 1989 further solidifies its commitment to these global standards.

To give effect to these constitutional and international principles, various legislative measures have been enacted over the years, including the Employment of Children Act, 1938, the Factories Act, 1948, the Mines Act, 1953, and the comprehensive Child Labour (Prohibition and Regulation) Act, 1986.

The judiciary has consistently interpreted Article 24 broadly, expanding its scope to ensure comprehensive child protection. In a significant case, the Supreme Court clarified that the prohibition under Article 24 extends to construction work.

It was held that even if the construction industry was not specifically listed in the Schedule to the Employment of Children Act, 1938, children below the age of 14 years could not be employed in it, recognising construction as a hazardous form of employment.

This ruling underscored the principle that the spirit of the law, which is to protect children from danger, must prevail over literal interpretations.

A watershed moment in child labour jurisprudence was the Public Interest Litigation initiated concerning the harrowing plight of children toiling in the Sivakasi cracker factories.

In this landmark case, the Supreme Court not only reiterated the constitutional prohibition on employing children below 14 in any hazardous industry, mines, or other works, but also laid down a comprehensive set of guidelines.

These guidelines were designed to protect the economic, social, and humanitarian rights of millions of working children across the nation.

The Court directed the establishment of a ‘Child Labour Rehabilitation Welfare Fund’ and mandated that any offending employer must pay a compensation of twenty thousand rupees for each child employed, with this amount to be deposited into the Fund.

The Court made it unequivocally clear that an employer's liability would not cease simply by disengaging the child; instead, the government was directed to ensure that an adult member of the child’s family was provided with a job as an alternative.

If providing such a job proved impossible, the appropriate government was then required to deposit twenty-five thousand rupees into the Fund for each child found engaged in factory, mine, or any other hazardous employment.

A crucial condition was attached to these benefits: they would cease if the child was not sent for education by their parents until the age of 14 years.

This innovative approach sought to create a disincentive for child labour while simultaneously incentivising education and providing a support system for the affected families.

The Court further outlined a phased approach to tackling child labour, beginning with the most hazardous forms of employment and then progressively addressing less hazardous ones.

It identified nine specific industries for priority action, pinpointing areas notorious for child exploitation such as the match industry in Sivakasi, diamond-polishing in Surat, glass industry in Firozabad, and the hand-made carpet industry in Mirzapur, among others.

For children engaged in non-hazardous jobs, the Court directed inspectors to ensure that their working hours did not exceed four to six hours a day and that they received at least two hours of education daily, with the employer bearing the cost of this education.

Adding another layer to this jurisprudence, another significant case, a Public Interest Litigation concerning child labour in the Carpet Industry in Uttar Pradesh, delved into the root causes of this pervasive issue.

The Supreme Court observed that poverty is the fundamental driver of child labour. Rather than advocating for an immediate, total abolition, which might have unintended adverse effects, the Court suggested a progressive ban.

This phased approach would start with the most hazardous and intolerable activities, such as slavery, bonded labour, human trafficking, prostitution, pornography, and other dangerous forms of labour. Crucially, the Court emphasised the need for simultaneous alternative measures for these children, including compulsory education, healthcare, nutritious food, shelter, and other means of livelihood that would uphold their self-respect and human dignity.

The Court passionately articulated that "The child of today cannot develop to be a responsible and productive member of tomorrow’s society unless an environment which is conducive to his social and physical health is assured to him."

It warned that neglecting children inevitably leads to a "loss to the society as a whole," highlighting that their employment—whether forced or voluntary due to poverty—is detrimental to democracy, social stability, unity, and the integrity of the nation.

The Court further noted that many welfare measures enacted by Parliament and State Legislatures often remain "teasing illusions" and "promises of unreality" unless they are effectively implemented.

It called for the eradication of child labour through well-planned, poverty-focused alleviation and development strategies, coupled with appropriate trade actions concerning child employment.

Together, Articles 23 and 24 stand as formidable constitutional shields, designed to protect all individuals from exploitation and to nurture the potential of our children. They represent a collective national resolve to uphold human dignity and ensure that every person can live a life of freedom, free from the shackles of forced labour and the lost innocence of childhood.

Upholding Dignity: A Continuous Endeavour

Articles 23 and 24 of the Indian Constitution stand as an indispensable bulwark against exploitation, fundamentally upholding the dignity of the individual as proclaimed in the Preamble.

These provisions, acting as a crucial supplement to the 'right to freedom', are designed to protect the personal liberty of citizens by prohibiting traffic in human beings, begar, and all forms of forced labour. This protection extends not just against the State but also against private citizens.

Through judicial interpretation, 'force' has been broadly defined to include economic compulsion, ensuring that even underpaid labour due to dire circumstances constitutes forced labour.

Equally vital is Article 24, which specifically safeguards the innocence and future of children by prohibiting their employment below the age of 14 in factories, mines, or any hazardous occupations.

The judiciary, particularly the Supreme Court, has played a proactive role in giving effect to these rights, issuing landmark judgments that have led to the abolition of customary practices like Devadasis, the establishment of rehabilitation funds for child labourers, and comprehensive guidelines for their protection and education.

Despite this robust legal framework and vigilant judicial pronouncements, particularly those acknowledging poverty as the basic cause of child labour, the complete eradication of exploitation remains an ongoing challenge.

As the Supreme Court aptly observed, various welfare measures can often become "teasing illusions" unless effectively implemented.

Therefore, a continuous, concerted effort from the legislature, the executive, the judiciary, and civil society is imperative to ensure that the constitutional promise of a life free from exploitation is a meaningful reality for every person in India, safeguarding human dignity and fostering a just society.

Case References

1. Shama v State of U.P. (AIR 1959 All. 57)

2. Dubar v Union of India (AIR 1952 Cal. 496)

3. Gaurav Jain v UOI (AIR 1997 SC 3021)

4. Kahaosan Tangkhul v Simirei Shailei (AIR 1961 Manipur 1)

5. PUDR v UOI (AIR 1982 SC 1473)

6. State v Jorawar (AIR 1953 A.P. 18)

7. Sanjit Roy v State of Rajasthan (AIR 1983 SC 328)

8. State of Gujarat v Hon’ble High Court of Gujarat (1998) 7 SCC 392

9. M.C. Mehta v State of T.N. (AIR 1997 SC 609)

10. Bandhua Mukti Morcha v Union of India (AIR 1997 SC 2218)