Forced Labour: Violation of Human Rights
This article is written by Divyakshi Jain, a semester X, B.B.A. LL.B. student of National Law University Jodhpur.
According to the International Forced Labour Convention, 1930 forced or compulsory labour is defined as “all work or service which is exacted from any person under the threat of a penalty and for which the person has not offered himself or herself voluntarily.”[1] Forced labour can be said to be work that is performed involuntarily or under coercion.
It refers to situations in which people are coerced through means of violence or intimidation, or by subtler means such as manipulated debt, retention of identity papers or threats of denunciation to immigration authorities.
The definition consists of three main elements:
- Work or service refers to all types of work in any industry or sector, including the informal economy.
- The threat of a penalty may refer to a wide range of penalties that can be used to compel people to work.
- Involuntary: The term “offered voluntarily” refers to free and informed consent on part of the worker with the freedom to leave the job at any time.
Article 2(2) of the Forced Labour Convention, describes five situations, which are treated as exceptions to the definition of forced labour:
- Compulsory military service.
- Normal civic obligations.
- Prison labour (under certain conditions).
- Work in emergency, situations (such as war, calamity or threatened calamity e.g. fire, flood, famine, earthquake).
- Minor communal services (within the community)[2].
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Legal Framework in India
Article 23 of the Constitution of India[3] explicitly prohibits human trafficking and forced labour. While the term “forced labour” has not been defined in the Constitution, the Supreme Court of India has read into this provision in an expansive manner and provided guidance on the definition.
In the case of PUCL v. Union of India[4], the Supreme Court of India determined that forced labour would be defined as any labour for which a worker receives less than the minimum wage stipulated by the Government of India: “ordinarily no one would willingly supply labour or service to another for less than the minimum wage… [unless] he is acting under the force of some compulsion which drives him to work though he is paid less than what he is entitled under law to receive.”
The offence under Article 23(1) has been laid down in the Bonded Labour System (Abolition) Act, 1976[5] and is supported by labour legislations such as the Contract Labour Act of 1970[6], the Inter-State Migrant Workmen Act, 1970[7] and Child Labour (Prohibition and Regulation) Act, 1986[8]. The minimum wages are set by the Government as per provisions of the Minimum Wages Act, 1948[9].
Bonded Labour has been defined in the Bonded Labour Act as a system of forced or partly forced labour under which a debtor accepts an advance of cash or in-kind in exchange for a pledge of his or any family member’s or other dependent’s labour or service to, or for the benefit of, the creditor.[10] The agreement may be oral or in writing, maybe of varied duration, and with or without wages.
Debt bondage denied individuals the basic right to choose their employer or to negotiate the terms of their contract or to even quit if they are not happy with the working conditions. Workers are forced to work to repay a debt that is constantly manipulated or augmented through the imposition of interest, penalty or deductions. This leaves them struggling without hope of bettering their conditions.
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Bonded labour is a regrettable deeply entrenched part of the socio-economic fabric of India. Moreover, evidence suggests that members of marginalized castes and tribes, religious minorities, refugees and migrant workers are disproportionately affected by debt bondage. The reason for the same is that despite a number of steps by the Indian government these communities still suffer from much higher degrees of poverty and illiteracy. Additionally, these communities also lack viable livelihood opportunities and access to financial services.
The practice of debt bondage persists predominantly in the informal and unregulated sectors in India, which is estimated to employ around 94% of the workforce in India. The absence of any labour standards implemented in these sectors creates an employee-employer power imbalance.
Furthermore, the chronic underpayment of minimum wages in low-skilled and semi-skilled work has led to a large portion of the labour force resorting to debt bondage to meet even basic consumption needs, or to deal with any emerging medical emergencies.
Under India’s federal structure, the implementation of the Bonded Labour Act is the responsibility of the state governments. However, the National Human Rights Commission (NHRC) has documented various instances of the authorities’ failure to implement measures addressing these issues.
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The Bonded Labour Act also provides for individual and corporate criminal liability and prescribes a penalty of up to 3 years of imprisonment and 2000 rupees fine for acts of advancing or extracting bonded debt or compelling a person to provide bonded labour.
Section 370 of the IPC[11] which was introduced in the 2013 amendment, prohibits trafficking for the purpose of slavery or practices similar to slavery or servitude. Surprisingly, this provision does not contain any explicit reference to bonded or forced labour.
However, according to research by the Freedom Fund and Thomas Reuters Foundation, most legal experts believe that servitude and “practices similar to slavery” would include situations of bonded and forced labour as well.
Under the Child Labour Act, 1986 children under the age of 14 are prohibited from working in certain industries such as mining, factories and other hazardous employment. The Juvenile Justice Act, 2000 also criminalized the exploitation of child workers including keeping him or her in debt bondage or withholding their earnings.[12]Moreover, a Court can seal the business premises where a child is found to be employed without a conviction.
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Conclusion
The labour legislation in India, especially in relation to forced labour are very complex, with over 40 central legal mechanisms segmented in industry or type of work (the majority of which have been discussed above). However, it is estimated that more than 90% of the Indian workforce works in informal sectors and are thus vulnerable to forced or bonded labour.
Thus, there needs to be stricter action taken in order to ensure that more and more unregulated sectors can at least be subject to some labour standards. And that the vulnerable classes of society like the disadvantaged section of society, children, etc. can be spared from this indignity.
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Edited By Mr Ayush Jain
(Editor)
[1] Forced Labour Convention, 1930 (No. 29), International Labour Organization, https://www.ilo.org/dyn/normlex/en/f?p=NORMLEXPUB:12100:0::NO::P12100_ILO_CODE:C029.
[2] Id, Article 2(2).
[3] Constitution of India, 1950 Art. 23.
[4] 1982 AIR 1473, 1983 SCR (1) 456.
[5] Bonded Labour System (Abolition) Act, 1976 Act No. 19 of 1976.
[6] Contract Labour (Regulation & Abolition) Act, 1970 Act No. 37 of 1970.
[7] The Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 Act No. 30 of 1979.
[8] Child Labour (Prohibition and Regulation) Act, 1986 Act No. 61 of 1986.
[9] Minimum Wages Act, 1948 Act No. 11 of 1948.
[10] Supra 5 Section 2(g).
[11] Indian Penal Code, 1860 Section 370.
[12] Juvenile Justice Act, 2015 Section 79.