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Rights against Exploitation ARTICLE 23 & 24 EXPLAINED BY …
Rights against
Exploitation
ARTICLE 23 & 24 EXPLAINED BY :ATRISHEKHAR
Article 23
Prohibition of traffic in human beings and forced labour
(1) Traffic in human beings and beggar 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 purposes, 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
Human Trafficking
Begar:
Forced Labour-
Explanation
In Clause (2) the term gender was not included as there can be need of compulsory military services during war or any other emergency, and at that time the state can discriminate based on gender/sex as per this article.
Clause (2) does not mention the requirement of law for its execution, thus only by executive action this
section can be implemented. It may create issues as executive action may be arbitrary or unreasonable.
Under People Union for Democratic Rights case, 1982 the Supreme Court said that even though the expression "by law" is not mentioned in section 2, yet the compulsory service cannot be implemented by the state by executive order, it has to be done by Law.
SexWork
Concerned law regarding sex work is Immoral Traffic Prevention Act, 1956. Following activities are crime under the Act:
Running a Brothel.
Pimping (Controlling prostitutes and arranging clients for them).
Soliciting prostitution in public places like Hotel, Guest house etc.
The Act does not explicitly mention soliciting prostitution in private confined of one's home as a crime. Different experts have different opinions on this issue.
There is debate of legalizing the sex work in India. In many countries like Denmark, Germany, New Zealand etc. the substantial aspect of sex work have been de-criminalized.
legalizing and decriminalizing sex work:
PROS
If it is legalized, better regulation can be ensured
As currently almost all the sex work took place
in secretive manner and by legalizing all these activities will be on surface and state will be better able to regulate this industry.
State will be in better position to check the trafficking of women and forced prostitution.
The sex workers will be better protected from STD's, AIDS etc. by the increased access to information by the government.
Sex work will also be covered under the Labour Laws and through the various social protections.
There may be decrease in case of Rapes, Sexual assaults etc.
After providing legal status there will be no requirement of middlemen who often exploit the sex workers.
Improvement in hygiene, living conditions etc. can be ensured.
CONS
This will lead to spurt in demand of sex workers which may further increase the illegal sex trafficking.
There will be further enhancement of commodification of women.
It may send wrong message that the government is encouraging or promoting sex work and commodification of women.
This right would also be executed through Law, thus it does not execute itself.
Immoral Traffic Prevention Act, 1956 and Bonded Labour Abolition Act, 1976 were enacted to execute this right.
According to the Supreme Court, even if someone is paid for the forced labour, it is still a violation of Right under Article 23 ( 1).
According to the ILO Forced Labour Convention,
1930 (No. 29) forced or compulsory labour is:
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.
Article 23 of Indian constitution declared
‘bonded labour’ unconstitutional.
In British regime, British officers and Zamindars used
to compel the peasants/labourers to work without remuneration
It was a peculiar Indian system used by local
zamindars.
Begar meant ‘involuntary work without payment’.
Begar or Bonded labour contravens with
provisions of both Article 21 and Article 23.
It protects the individual not only against the
‘State’ but also against ‘private persons’.
DECRIMINALISING BEGGARY
In India, begging was first criminalised in the 1920s, as part of a colonial logic that sought to subjugate certain communities by imputing criminality to them.
Beggary laws in India are a relic of the old colonial legacy. For example, according to the Criminal Tribes Act (1871), indigenous peoples were deemed criminals by birth and herded into concentration camps, where families were separated and forced labour was the norm.
These criminal tribes are now called denotified tribes (after independence), which forms a major section of people engaged in beggary.
ISSUES IN BEGGARY
Definition of Beggary
The Act defines beggary as an activity of having no visible means of subsistence, and wandering about or remaining in any public place in such condition or manner, as makes it likely that the person doing so exists by soliciting or receiving alms.
BEGGARY LAWS IN INDIA
There is no central Act on beggary; however, many States and Union Territories have used certain sections of the Bombay Prevention of Beggary Act, 1959,as the basis for their own laws.
Through these legislations, the governments try to maintain public order, addresses forced begging or “begging rackets”, prevent annoyance to tourists.
WAY FORWARD
The Centre made an attempt at repealing the Act through the Persons in Destitution (Protection, Care and Rehabilitation) Model Bill, 2016,with provisions including doing away with the Beggary Act and proposing rehabilitation centres for the destitute in each district.
Bihar government’s Mukhyamantri Bhikshavriti Nivaran Yojana is a scheme worth emulation
The very real problem of organised begging rackets will have to be addressed by other means, perhaps based on the law of trafficking.
Unjust Process
People found “begging” can be arrested without a warrant, and after a summary procedure, thrown into “Beggars Homes” for anything between a year and three years
Violation of Fundamental Rights
Begging and homelessness are indicators of chronic poverty. Therefore, criminalising poverty violates basic human dignity.
This coupled with the draconian processes under the Act, violated the right to life and personal liberty under Art. 21.
Criminalising begging is violative of 19(1)(a) – freedom of speech guarantee and Art. 19(1)(d) – freedom of movement.
Failure of Welfare state
Beggary is a manifestation of the fact that the person has fallen through the socially created net.
The government has the mandate to provide social security for everyone, to ensure that all citizens have basic facilities, and the presence of beggars is evidence that the state has not managed to provide these to all its citizens.
This also includes immoral traffic like trafficking for sex work, prostitution etc.
Begar is a form of forced labour.
Human Trafficking is the illegal trade in human beings.
It is the modern form of slavery.
Prohibition of Human Trafficking
Prohibition of Begar
Prohibition of Forced Labour
Exceptions
Article 23 permits the State to impose compulsory
service for public purposes, as for example, military service or social service, for which it is not bound to pay.
However, in imposing such service, the State is not
permitted to make any discrimination on grounds only of religion, race, caste or class.
Article 24
Prohibition of employment of children in factories, etc.
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.
Who is a child?
According to the UNCRC, a child means every human being below the age of 18 years.
The Child Labour (Prohibition and Regulation) Act, 1986 defines a child as a person who has not completed fourteen years of age.
The Factories Act, 1948 and Plantation Labour Act 1951 states that a child is one that has not completed fifteen years of age
The Juvenile Justice (Care and Protection of
Children) Act, 2000 has changed the definition of child to any person who has not completed 18 years of age.
POCSO Act 2012 defines a child as any person below 18 years of age.
What is Child Labour ?
UNICEF has categorized child work into three
categories
Within the family but
outside the home
Agricultural laborers,
domestic maids, migrant Agricultural laborers,
domestic maids, migrant
Within the Family
Children are engaged in
domestic household tasks without pay.
Outside the family
Commercial shops in
restaurants and jobs prostitution etc
Explanation:
The list of hazardous employment is mentioned in the Child Labour (Prohibition and Regulation) Act, 1986. 18 occupations and 65 industrial processes are listed under this Act.
Under the Act, employment of children in occupation other than hazardous employment is allowed.
But this conflicts with the Rights provided under Right to Education Act 2009 (Article 21A) (Free and compulsory education to the children of 6 to 14 years of age).
Due to this, the law was amended in 2016 and the amended law provides for the prohibition of Child
Labour (Under 14 year) in all type of employment (hazardous as well as non-hazardous) except the employment in:
Family Run enterprises.
Audio Visual Entertainment industry.
The Act also introduced a new category of Adolescents (14 - 18 years of age) and employment of
adolescents in hazardous occupations is prohibited. The list now only reduced to primarily 3 industries:
Industries using Inflammable substances.
Explosives industry.
Mines.
Important Legislation related Children:
The Child Labour (Prohibition and Regulation) Act,
1986:
o The age of children was defined as anyone younger than 14 years of age.
o Children were prohibited from working in 13 occupations and 57 procedures under this law.
The Commissions for Protection of Child Rights Act,
2005
It provides speedy trial of offences against
children or of violation of child rights
The act was enacted to provide for the
establishment of-
National Commission for Protection of Child Rights
State Commissions for Protection of Child Rights
Children’s Courts
Child Labour (Prohibition & Regulation)
Amendment Act, 2016:
The law prohibits people between the ages of 14 and 18 from working in hazardous activities
The amendment imposed strict penalties for
infringing child labour policies.
Child Labour (Prohibition and Regulation)
Amendment Rules, 2017:
The rule under this act simplified problems
relating to the employment of children in family business
The rule provided protection for child artists by
defining working hours and conditions.
POCSO Act (Protection of Children from Sexual Harassment Act, 2012)
Salient provisions of the Act:
The Act defines Child as any person below eighteen. The Act remains gender-neutral.
Second, The Act also defines different forms of sexual abuse: including penetrative and non-penetrative assault, as well as sexual harassment and pornography.
Third, The Act deems a sexual assault to be “aggravated”: If the abused child is mentally ill or the abuse is committed by a person in a position of trust or authority like a family member, police officer, teacher, or doctor.
Fourth, The law provides for relief and rehabilitation as soon as the complaint is made.
The Special Juvenile Police Unit or the local police will make immediate arrangements for the care and protection of a child.
The arrangements such as obtaining emergency medical treatment for the child and placing the child in a shelter home etc.
Fifth, The Act has provisions for Mandatory reporting.
This casts a legal duty upon a person who has knowledge that a child has been sexually abused to report the offence.
If he fails to do so, he may be punished with six months’ imprisonment and/ or a fine.
Sixth, The Act provides for the establishment of Special Courts for the trial of offences under the Act.
Lastly, The Act prescribes a maximum punishment of life imprisonment or the death penalty. The Act provides a mandatory minimum punishment of three years.
Safeguards available to Children
The Act has provisions for avoiding the re-victimisation of the child at the hands of the judicial system.
The accused has to be away from the child at the time of testifying.
The Act mentions special courts have to conduct the trial without revealing the identity of the child. And also in a child-friendly manner as much as possible.
The child may have a parent or other trusted person present at the time of testifying. The Child can also call for assistance from an interpreter, special educator, or other professional while giving evidence.
The cases must be disposed of within one year from the date the offence is reported.