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In this article, the sections relating to slavery and forced labour are discussed. And the article also focuses on why the Indian Penal Code has to undergo the respective changes in the section i.e., the international organisation’s role in these changes. Yes, the international organization like the International Labour Organization has worked hard to bring out the problems relating to slavery and forced labour and this perspective is also discussed in detail.
Due to which the laws introduced in India are also shown as to what role they play. Further few cases are included to explain as to how the court of law reacts to a situation dealing with forced labour and slavery and what domestic laws does it refer to, are included in brief.
I. Introduction to Slavery and Forced Labour
The head “Of Kidnapping, Abduction, Slavery and Forced Labour” includes the sections dealing with Slavery and Forced Labour.[1] The sections 370, 370A, 371 & 374 talks especially about trafficking of people for slavery and forced labour.
“370 Trafficking of person—(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c) harbours, (d) transfers, or (e) receives, a person or persons, by—
First—using threats, or
Secondly—using force, or any other form of coercion, or
Thirdly—by abduction, or
Fourthly—by practising fraud, or deception, or
Fifthly—by abuse of power, or
Sixthly— by inducement, including the giving or receiving of payments or benefits, in order to achieve the consent of any person having control over the person recruited, transported, harboured, transferred or received, commits the offence of trafficking
Explanation 1—The expression “exploitation” shall include any act of physical exploitation or any form of sexual exploitation, slavery or practices similar to slavery, servitude, or the forced removal of organs
Explanation 2—The consent of the victim is immaterial in determination of the offence of trafficking
(2) Whoever commits the offence of trafficking shall be punished with rigorous imprisonment for a term which shall not be less than seven years, but which may extend to ten years, and shall also be liable to fine
(3) Where the offence involves the trafficking of more than one person, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to imprisonment for life, and shall also be liable to fine
(4) Where the offence involves the trafficking of a minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine
(5) Where the offence involves the trafficking of more than one minor, it shall be punishable with rigorous imprisonment for a term which shall not be less than fourteen years, but which may extend to imprisonment for life, and shall also be liable to fine
(6) If a person is convicted of the offence of trafficking of minor on more than one occasion, then such person shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine
(7) When a public servant or a police officer is involved in the trafficking of any person then, such public servant or police officer shall be punished with imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine”
The above section was amended by the criminal law amendment act 2013. In the pre-amended section, the law was punishing only slavery.[2] But now the section is much broader. It initially explains what is human trafficking and then goes on with its categories and its punishment which depends upon the gravity of an offence.[3]
“370A Exploitation of a trafficked person—(1) Whoever, knowingly or having reason to believe that a minor has been trafficked, engages such minor for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than five years, but which may extend to seven years, and shall also be liable to fine
(2) Whoever, knowingly by or having reason to believe that a person has been trafficked, engages such person for sexual exploitation in any manner, shall be punished with rigorous imprisonment for a term which shall not be less than three years, but which may extend to five years, and shall also be liable to fine”
“371 Habitual dealing in slaves—Whoever habitually imports, exports, removes, buys, sells, traffics or deals in slaves, shall be punished with imprisonment for life, or with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine”
All the above offences are cognizable offences and are non-bailable. They are dealing with slavery and human trafficking which are much graver than unlawful compulsory labour offence under section 374.[4]
“374 Unlawful compulsory labour—Whoever unlawfully compels any person to labour against the will of that person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
II. International perspective
The Treaty of Versailles had brought into light the International Labour Organization. This aims to protect and respect human rights especially, the right to work and aims at promoting social justice internationally. Social justice in the sense of ILO is to “respect human rights”, “decent living standards”, “human labour conditions”, “positive employment prospects” and “economic security”.
The ILO’s Governing Board has also established 8 fundamental conventions that regulate the areas that are considered as fundamental principles and workers’ rights, grouped into four categories: “freedom of association and the right to collective bargaining”, “the elimination of forced labour” or “abolition of child labour” and “the elimination of discrimination in employment and occupation”.[5]
The Abolition of Forced Labour Convention” was formed in order to enhance and enforce what ILO’s objectives and aims are. This helps in urging the members, i.e., members of ILO to have a strict and mandatory law to prevent any such kind of exploitation of labourers.[6]
Each Member of the International Labour Organisation which ratifies this Convention undertakes to suppress and not to make use of any form of forced or compulsory labour-
- as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system;
- as a method of mobilising and using labour for purposes of economic development;
- as a means of labour discipline;
- as a punishment for having participated in strikes;
- as a means of racial, social, national or religious discrimination[7]
Each Member of the International Labour Organisation which ratifies this Convention undertakes to take effective measures to secure the immediate and complete abolition of forced or compulsory labour as specified in Article 1 of this Convention.[8]
There is a nexus between forced labour and immigrants. Many immigrants being in search of jobs and money often fall prey for such type of crimes. The ILO has also studied that there are many people to who business of trafficking people for forced labour or slavery through the kidnapping of immigrants or by cheating the immigrants by making them believe that there are great job opportunities abroad. This earns them around 150.2 trillion dollars worldwide.[9]
There was a report published in 2002 by the Office of High Commissioner for Human Rights(OHCHR), which declared that there are three factors for determining what act can be called as any form of slavery[10]–
- The degree of restriction of the individual’s inherent right to freedom of movement
- The degree of control of the individual’s personal belongings
- The existence of informed consent a and full understanding of the nature of the relationship between the parties
III. Laws in India Against slavery and to Promote freedom and human rights
Indian being a member of ILO and a signatory to its many conventions have passed few laws in order to achieve the collective objectives of ILO.[11] Apart from what is given in the Indian Penal Code[12], the laws in India are promoting human rights and freedom of labour and movement. The first and foremost is the rights provided by the constitution of India which are fundamental to every individual i.e., cotemporary slavery and trafficking is prohibited under article 23[13].
The child labour which is a form of modern slavery is also prohibited under article 24 of the Indian Constitution.[14] Further article 39(e) ensures that workers, without any discrimination must be taken care of their health, children must not be abused or harassed.
And no citizen must be made to work more than what their strength permits.[15] Article 39(f) focuses on children to be given the freedom and must not be exploited in any way rather must be helped to develop oneself.[16]
When we talk about class-based exploitation and slavery, the law of Scheduled Castes and Scheduled Tribes Act 1989[17], is brought into force for betterment and protection of SCs and STs who are often in old times forced to beg. The other form of slavery was bonded labouring. To eradicate this practice, the Bonded Labour System (Abolition) Act 1976[18] was passed.
This helps in identifying, releasing, and rehabilitation of bonded labourers who are constantly exploited and abused. For dealing with child labour issues there is the Child Labour (Prohibition and Regulation) Act 1986[19].
Cases: The Reaction of Court of Law Against such Offences
In the case of State of Gujarat & Anr v. Hon’ble High Court of Gujarat (1998) 7 SCC 39, the court had a question mooted in front of them with regard to payment of wages of the prisoner. The state governments have preferred that the prisoners are not paid wages as they are themselves required to rigorous imprisonment by the law and hence the wages they earn are utilised by the state for providing basic amenities like food, clothing etc.
The judges studied prisoners act 1894 and that minimum wages act 1948 has also provided the employer to make deductions on the above-said provisions. Further, the court agreed that there is no constitutional violation when the prisoners are not paid the wages.
But the prisoners who are not required to undergo rigorous imprisonment can be given wages as per the state governments order. The court held that there is no violation of constitution i.e., article 23, and is not considered as forced labour or is not an offence under section 374 of IPC.[20]
In the case of Bandhua Mukti Morcha v. Union of India & Ors (1997) 10 SCC 549, there was a petition filed by the way of public interest litigation filed against the practice of a carpet industry of employing children below 14 years of age.
The report was submitted to the court claiming that this is the violation of article 24 and part of article 39 thereof. The court looked into the matter and order the state government and abolish such practice, thereby evolve the steps as provided in MC Mehta v. the State of TN (1996) 6 SCC 756 which are as follows[21]–
- “Compulsory education to all children either by the industries themselves or in coordination with it by the state government to the children employed in the factories, mine or any other industry, organised or unorganised labour with such timings as is convenient to impart compulsory education, facilities for secondary, vocational professions and higher education”
- “Apart from education periodical health checkups”
- “Nutrient food etc”
- “Entrust the responsibilities for the implementation of the principles. Periodical reports of the progress made in that behalf to be submitted to the Registry of the Supreme Court”.
These were the measures taken by the SC for abolishing the child labour and to not exploit the children below the age of 14 years.
The above cases are for reference as so how the Indian courts of law dealing with the cases relating to slavery and forced labour. It is the constitutional mandate to take care of children and vulnerable beings whereas it is the duty of the government to ensure there is freedom of labour and movement.[22]
[1] Indian Penal Code 1860, ss 359-374
[2] Criminal Law (Amendment) Act 2013, s 8
[3] Indian Penal Code 1860, s 370
[4] Code of Criminal Procedure 1973, ch XXXVII, sch 1
[5] Alina-Paula Larion, ‘Regulation of International Labour Organization on Forced Labour’ (2017) 4 Eur J L & Pub Admin [i]
[6] ILO Convention C105: Abolition of Forced Labour Convention (40th ILC Session Geneva 25th June 1957)
[7] ILO Convention C105: Abolition of Forced Labour Convention (40th ILC Session Geneva 25th June 1957), art 1
[8] ILO Convention C105: Abolition of Forced Labour Convention (40th ILC Session Geneva 25th June 1957), art 2
[9] Alina-Paula Larion, ‘Regulation of International Labour Organization on Forced Labour’ (2017) 4 Eur J L & Pub Admin [i], pg 9
[10] David Weissbrodt and Anti-Slavery International, ‘Office of the United Nations High Commissioner for Human Rights – Abolishing Slavery and its Contemporary Forms’ (2002) HR/PUB/02/4 <https://www.ohchr.org/Documents/Publications/slaveryen.pdf> accessed 1 April, 2020
[11] Ashley V Tomlinson, ‘Slavery in India and the False Hope of Universal Jurisdiction’ (2009) 18 Tul J Int’l & Comp L 231
[12] Indian Penal Code 1860, ss 359-374
[13] Constitution of India 1950, art 23
[14] Constitution of India 1950, art 24
[15] Constitution of India 1950, art 39, cl e
[16] Constitution of India 1950, art 39, cl f
[17] The Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, No 33 of 1989
[18] The Bonded Labour System (Abolition) Act, No 19 of 1976
[19] The Child Labour (Prohibition and Regulation) Act, No 61 of 1987
[20] State of Gujarat & Anr v. Hon’ble High Court of Gujarat (1998) 7 SCC 39
[21] Bandhua Mukti Morcha v. Union of India & Ors (1997) 10 SCC 549
[22] M C Mehta v. State of TN (1996) 6 SCC 756
