Article 23 Constitution of India

Article 23

Fire-walling the sacrosanct rights of the persons circumstantially pushed in the oppressive margins described as jetsam and flotsam of the society –Article 23 is a step-in-aid towards accomplishment of the ideals enshrined in Articles 14,19 and 21.

  1. 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 purpose, 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

 

ANALOGOUS PROVISIONS in other constitutions:

This Article corresponds to (i) the Thirteenth Amendment of the Constitution of the United States; and (ii) Article 18 of the Constitution of Japan.

INTERNATIONAL CHARTER AND CONVENTION

This Article relates to (i) Article 4 of the Universal Declaration of Human Rights 1948; (ii) Article 8 of the Covenant on Civil and Political Rights 1966; and (iii) Article 4 of the European Convention for the Human Rights 1950.

MEANING OF EXPRESSION

  • Begar: It means making a person work against his will and without paying any remuneration therefor. Molseworth gives the meaning of begar as :Labour or service exacted by a Government or a person in power without giving remuneration for it (Vasudevan v S.D. Mittal AIR 1962 Bom. 53 (para 28) It has been defined as “forced labour, one pressed to carry burden for individuals or public; under old system when pressed for public service no pay was given”. (as per Wilson’s Glossary)

In the Constituent Assembly Debates Vol 7, page 809, the reference to the speech of Mr. Raj Bahadur – Member of the Constituent Assembly, is relevant and clarificatory of this Article 23. The words of the said member: “this Article is a compliment to the character of freedom enshrined in Article 13 (Now Article 19). This frees the poor, downtrodden and dumb people of Indian States from the course of ‘begar’. The begar has been a blot on humanity……….. Through the centuries this course has remained as dead weight on the shoulders of the common man like the practice of slavery”.

Though the word slavery has not been used in Article 23, the very expression ‘traffic in human beings’ has a wide connotation to cover ‘slavery’ within it.

 

In AIR 1982 SC 1473 begar has been described as a labour or service which a person is forced to give without receiving any remuneration.

 

  • “Other similar forms of forced labour”. The words “other similar forms of forced labour must be construed ejusdem generis with begar. (Dulal Samanta v. Dsitrict Magistrate, Howrah AIR 1958 Cal 365 (para 28))

This Article has its genesis in Article 4 of the Universal declaration of Human Rights which bans slavery and slave trade in any form. Even Article 4 of the European Convention of human Rights and Article 8 of the covenant on Civil and Political Rights 1966 prohibit forced or compulsory labour.

Article 23 by force of its constitutional philosophy widens the sweep of the expression ‘State’ in the context of enforceability of rights, to include even a private person. In Sanjit Roy v. State of Rajasthan (AIR 1983 SC 328), it has been held as under:

“This Court had occasion to consider the true meaning and effect of Article 23 in a judgment given on 18th September 1982 in writ petition No. 8143 of 1981-Peoples Union for Democratic Rights and Ors. v. Union of India and Ors. (1982 AIR 473) . The Court pointed out that the constitution makers, when they set out to frame the Constitution, found that the practice of ‘forced labour’ constituted an ugly and shameful feature of our national life which cried for urgent attention and with a view to obliterating and wiping out of existence this revolting practice which was a relic of a feudal exploitative society totally incompatible with new egalitarian socio-economic order which “We the people of India” were determined to build, they enacted Article 23 in the Chapter on Fundamental Rights. This Article, said the Court, is intended to eradicate the pernicious practice of ‘forced labour’ and to wipe it out altogether from the national scene and it is therefore not limited in its application against the State but it is also enforceable against any other person indulging in such practice. It is designed to protect the individual not only against the state but also against other private citizens.”

 The reach and scope of Article 23 as a ‘Fundamental right against exploitation’ also aims to annihilate every exploitative form of exploitation classified as traffic in human beings.

Women and children are the most vulnerable targets of such exploitation. In Vishal Jeet v UOI (1990)3 SCC 318 , popularly called devdasi case, Supreme Court  looked at the practice and held the same to be flagrantly violative of Article 23. Thus in Gaurav Jain v UOI AIR 1997SC 3021, in tandem with Shama Bai v State of UP,AIR 1959 ALL WR 509, the law to suppress such traffic was held valid, while issuing directions to State to evolve procedure and principles regarding rescue and rehabilitation of prostitutes.

Another expression ‘forced labour’ in the fold of Article 23 is relevant. It is wide expression. Thus even though remuneration was paid to the workers, having regard to ‘compulsive features’ of employment, Court in People’s Union For Democratic Rights v UOI AIR 1982 SC 1473, held it to be forced labour. It was also held that if any person was compelled to work for a wage, less than notified minimum wage, it would tantamount to forced labour(People’s Union For Democratic Rights v UOI AIR 1982 SC 1473 ).

The expression ‘public purposes’ in the enabling clause (2) of Article 23 is again a wide expression. The expression ‘public purposes’ is wide enough, to include not only military and police services but also other social services. (Dulal Samanta v. Dt. Magistrate, Air 1958 Cal. 365 (372)). Reformation and rehabilitation of the prisoners serve as public purpose for which imposition of hard labour on the convicted prisoner on payment of minimum wages would be saved under Cl. (2). but too much emphasis should not be laid on reformation theory so that the tenets of punishment may not altogether vanish, ignoring the interest of the victim and his dependents (State of Gujarat v Hon’ble High Court of Gujarat, (1998) & SCC 392 (paras 91 and 99). Thus there will be no contravention of Article 23.

  • To compel a cultivator to carry foodgrains to the Government godown, without remuneration for such labour, in a scheme of procurement of foodgrains as an essential commodity for the community. (Acharaj Singh v State of Bihar, AIR 1967 Pat. 114 (119)). But a Government servant could not, in the normal times, be compelled to carry loads outside his official duties. (State v. Jarwar, AIR 1955 HP 18)
  • To compel a Government servant to continue in service even after the age of superannuation, pending the conclusion of a departmental inquiry, would be valid under this clause. (Partap Singh v State of Punjab, AIR 1964 SC 72(100)).

The Article 23 acknowledges the right against exploitation and State obligation to protect the victims. The exploitative practices not only erase the glorious chapter of fundamental rights of the victims but also destroy the very meaning and value of democratic governance.

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