Articles 23 and 24: right against exploitation - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Enforceable against everyone. Like Articles 15(2) and 17, these bind private persons as well as the State. That is essential to their purpose: bonded labour and child labour are practices of employers, not of governments, and a right available only against the State would be useless against them.

1. Article 23: traffic in human beings and forced labour

Article 23(1) prohibits traffic in human beings, begar and other similar forms of forced labour, and makes any contravention an offence punishable in accordance with law.

Article 23(2) permits the State to impose compulsory service for public purposes — conscription being the obvious example — provided that in doing so it makes no discrimination on grounds only of religion, race, caste or class.

What the terms mean

Traffic in human beings covers the buying and selling of human beings as chattels, and includes trafficking for prostitution, for labour, and dealing in devadasis and slaves. The Immoral Traffic (Prevention) Act, 1956 gives it statutory effect.
Begar is labour or service exacted without payment, historically a feudal exaction from tenants or villagers.
Other similar forms of forced labour is the wider phrase, and it has done the most work. It covers bonded labour, and any labour compelled by force of legal provision, of physical compulsion, or of economic circumstance.

The reading that matters: payment below minimum wage

In People's Union for Democratic Rights v. Union of India, 1982 INSC 67, (1982) 3 SCC 235 — the Asiad Workers case — workers engaged on construction for the Asian Games were paid less than the minimum wage. The Court held:

“Force” is not confined to physical or legal compulsion. It includes force arising from economic circumstance which leaves a person no choice but to accept labour on any terms.
Therefore payment of less than the minimum wage amounts to forced labour and violates Article 23, because a person driven by hunger and want has not freely chosen the bargain.
Article 23 is available against private individuals, and the State is under a duty to ensure that the prohibition is observed by those it engages, including through contractors.

The case is also an important early public interest litigation, brought by an organisation on behalf of workers who could not approach the court themselves.

Bonded labour was addressed by statute in the Bonded Labour System (Abolition) Act, 1976, whose enforcement the Supreme Court supervised in the bonded labour litigation of the following decade.

2. Article 24: prohibition of employment of children

Article 24 provides that no child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment.

Read the scope carefully, because it is narrower than students assume. The prohibition is absolute for factories, mines and hazardous employment. It does not prohibit the employment of children in all work — non-hazardous work is not covered by the Article itself, though it is now heavily restricted by statute.

The statutory framework

The Child and Adolescent Labour (Prohibition and Regulation) Act, 1986, as amended in 2016, which prohibits the employment of children below fourteen in all occupations save help in a family enterprise outside school hours, and regulates the employment of adolescents between fourteen and eighteen in hazardous occupations.
Article 21-A, inserted by the Eighty-sixth Amendment, 2002, making free and compulsory education for children between six and fourteen a fundamental right, and the Right of Children to Free and Compulsory Education Act, 2009. This is the constitutional counterpart of Article 24: a child who must be in school cannot be in a factory.
Article 39(e) and (f), directive principles requiring that the tender age of children is not abused and that children are given opportunities to develop in conditions of freedom and dignity.

3. The connection to Article 21

Both Articles are read alongside the right to live with dignity in Article 21, as stated in Francis Coralie Mullin v. Administrator, Union Territory of Delhi, 1981 INSC 11, (1981) 1 SCC 608. Exploitative labour offends dignity, and the remedies developed in the Article 21 jurisprudence — rehabilitation, compensation, continuing mandamus — have been applied to Article 23 and 24 cases.

How this is examined

Usually as a short note on Article 23 or Article 24, sometimes as a combined question on the right against exploitation. Occasionally as a problem on whether paying below the minimum wage offends the Constitution — for which the answer is the Asiad Workers case.

Points that lift the answer: say that both Articles bind private persons; give the economic compulsion reading of “forced labour” with authority; state the Article 23(2) exception for compulsory public service; and note that Article 24 is limited to factories, mines and hazardous employment, with the statute going further than the Article. Link Article 24 to Article 21-A, which shows the two working together rather than in isolation.

Now go and read the questions themselves: Constitutional Law I past question papers.