Constitution: Right against exploitation
Contents
- Article 23 :Prohibition of traffic in human beings and forced labour
- Right to Freedom of Religion
- Cultural and Educational Rights
Article 23 :Prohibition of traffic in human beings and forced labour
‘ 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.’
Article 23 applies to everyone, not just citizens; everyone is covered. Both the state and private parties must respect this fundamental right. According to the Supreme Court in People's Union for Democratic Rights v. Union of India [(1982) 3 SCC 235], "Now many of the fundamental rights enacted in Part III operate as limitations on the power of the State and impose negative obligations on the State not to encroach on individual liberty and they are enforceable only against the State." But the Constitution also grants several essential rights that are upheld in every country and are found, among other places, in Articles 17, 23, and 24. The provision in question is Article 23, and it is apparent that its purpose is to protect the person not just from the State but also from other private citizens. Article 23 outlaws "trade in human beings and beggar and other similar forms of forced labour" practised by anybody else. Its application to the State is unrestricted. Article 23 has a broad and unrestricted scope, and it targets "trade in human people and beggar and other similar forms of forced labour" wherever they may be found.
This clause recognises the exploitation of humans as a result of human trafficking. Trafficking is a well-funded, organised form of crime. It happens for a variety of reasons, including the entertainment business, labour, organ trading, drug trafficking, and commercial sexual exploitation.
Before 2013, neither the Constitution nor any other statute provided a definition for the term "traffic." Although the Immoral Traffic (Prevention) Act of 1956 and its predecessor, the Suppression of Immoral Traffic in Women and Girls Act, deal with commercial sexual exploitation of people, the word "traffic" is not defined in the aforementioned laws.
The term "trafficking in persons" as it is used in the Palermo Protocol, also known as the "Palermo Protocol," which supplements the United Nations Convention Against Transnational Organized Crime, was utilised as a working definition on the international stage. On May 5, 2011, the Government of India ratified the Protocol. A working definition of "child trafficking" exists on a global scale. Because it has the aforementioned three components, the functioning definition is evident. To update its working definition of "child trafficking," India approved the PALERMO Protocol in June 2001. v. Union of India: (2011) 5 SCC 1 [BachpanBachaoAndolan v.
The Indian Penal Code now includes the phrase "trafficking of individuals" thanks to the Criminal Law (Amendment) Act of 2013. (IPC). It is comparable to the Palermo Protocol's definition of "trafficking in persons." The IPC's Section 370 is copied below:
‘Section 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 practicing 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.
(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 practicing 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: Any act of physical or sexual exploitation, servitude or the forcible removal of organs are all included under the term "exploitation," as are slavery-like activities.
Explanation 2: "The victim's agreement is irrelevant in determining the crime of trafficking."
The IPC defines human trafficking as a crime. The term "trafficking of individuals" has a broad definition; unlike the Immoral Traffic (Prevention) Act, it does not only refer to trafficking for the purpose of commercial sexual exploitation. Exploitation is a key component of it. Explanation 1's list of exploitative circumstances is not all-inclusive. Regardless of the "permission of the victim," trafficking in persons is illegal since the goal is to punish exploitation of others. To ensure an improvement in the socioeconomic standing of the majority, Article 23 was included in the list of fundamental rights.
As mentioned, trafficking in persons is an organised crime involving multiple parties. Section 370 of the IPC tries to address all of these various links, including the recruiter, transporter, harborer, etc., as well as the variety of ways the crime is committed, including using threats, kidnapping, abusing power, etc.
What do the terms "begar" and "forced labour" mean? The People's Union for Democratic Rights has provided an answer to this query. "The word 'begar' used in this article is not one that is frequently used in English. It is an Indian word that, like many others, has made its way into the English language. The word "begar" is quite difficult to define precisely, but there is no question that it refers to a type of forced labour in which someone is required to work without being paid. The definition of "begar" according to Molesworth is "labour or service demanded by a Government or person in power without paying payment for it." The definition of "begar" according to Wilson's Glossary of Judicial and Revenue Terms is "a forced labourer, one driven to bear burdens for individuals or the public." In the previous system, there was no compensation for performing public duty. The begari now gets paid, yet they can still be forced for public goods. Forced labour for private employment is forbidden. Therefore, "begar" can be broadly defined as work or service that is required of a person but for which they are not paid. In the case of S. Vasudevan v. S.D. Mital [AIR 1962 Bom 53], a Division Bench of the Bombay High Court recognised this definition of the word "begar." So it is obvious that "Begar" is a sort of forced labour. Now, Article 23 not only forbids "begar," but also any other forms of forced labour that are similar to it. This Article condemns forced labour in all its forms since it is a violation of human dignity and goes against fundamental human principles. Almost every international human rights treaty expressly forbids the use of forced labour.
The phrase "begar" simply refers to taking work from someone without paying them for it. "Forced labour" refers to labour that is not performed voluntarily but rather as a result of coercion or force, such as working for less than the minimum wage because of hunger and poverty.
Right to Freedom of Religion
Article 25 :Freedom of conscience and free profession, practice and propagation of religion
‘(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.’
The Constitution has always included the right to religious freedom. The partition of India, which led to the isolation of the minority religious community, was a major consideration for the Constitution's authors. As a result, even though the word "secular" was added to the Preamble in 1976, "secular" elements have always been included throughout the Constitution.
The phrases "all" and "equally entitled" are used in clause (1) of Article 25 to signify that everyone is equally entitled to this right. Both you and I have the right to practise any religion we want. Therefore, neither the state, subject to specific stipulated situations, nor a person, may violate such a right.
A person's understanding or sense of right or wrong is referred to as conscience. It has nothing to do with a particular religion or with having confidence in God. An individual has the opportunity to retain the belief that he does not belong to any religion and does not believe in any religious tenets thanks to "freedom of conscience." It enables someone to declare their atheism in front of others. The Bombay High Court stated in the 2014 case of Dr. RanjeetSuryakantMohite v. Union of India that "freedom of conscience under Article 25 of the Constitution comprises in itself a freedom to a person to take the position that he does not belong to any faith." An individual has the right to identify himself as a "Atheist" as part of the freedoms guaranteed by Article 25 of the Constitution. As the freedom of conscience bestows a fundamental right to entertain a religious belief, it also bestows a right on an individual to voice an opinion that he does not belong to any religion. In order to avoid violating any individual's rights, the court orders the state parties "not to compel any individual to identify or specify his faith in any form or any declaration."
A disciple of a certain religion has the right to publicly and openly declare that he adheres to that faith, which is referred to as the right to "profess" a religion. The term "practise" refers to an individual's ability to engage in rituals and other actions that are right to their chosen faith. The term "right to propagate" a religion refers to the freedom to share one's right doctrine with others.
Article 25 (1)holds within its fold the right of an individual to convert from one religion to another, if an individual’s conscience so desires, but not the right to convert a person to one’s religion. This has been aptly explained by the Supreme Court in Rev. Stainislaus vs. State of Madhya Pradesh [(1977) 1 SCC 677]:
“We have no doubt that it is in this sense that the word ‘propagate’ has been used in Article 25(1), for what the article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees ‘freedom of conscience’ to every citizen, and not merely to the followers of one particular religion, and that, in turn postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the ‘freedom of conscience’ guaranteed to all the citizens of the country alike.” Anti-conversion legislation has been enacted by several State Governments, and has been much debated - one side argues that anti-conversion laws are necessary to check forced-conversion, whereas, the other argues that such laws are restrictive of the right to propagate religion and that its agenda is to target those converting to minority communities In Rev. Stainislaus’ case, the Supreme Court while upholding State Government’s right to enact anti-conversion legislation, states, “The Acts therefore clearly provide for the maintenance of public order for, if forcible conversion had not been prohibited, that would have created public disorder in the State….The impugned Act…are meant to avoid disturbances to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community.”
Subject to other provisions of this Part and public order, morals, and health, freedom of religion is guaranteed. It forbids
(i) the deliberate outraging of the religious feelings of others, which could cause a public order situation;
(ii) human sacrifices in the name of religion;
(iii) nuisance in the name of religion;
(iv) breach of other fundamental rights
The Supreme Court stated in RamjiLalModi v. State of Uttar Pradesh [AIR 1957 SC 620] that the freedom of religion guaranteed by Articles 25 and 26 is specifically made subject to public order, morality, and health. Therefore, it cannot be assumed that religious freedom has no connection to upholding the rule of law or that a statute making a religious offence cannot ever be stated to have been passed in the name of maintaining the peace. In terms of the rights they guarantee, those two articles allow for limitations to be applied in the sake of public order. Article 26 gives "every religious denomination" the freedom to conduct its own affairs, including the creation and upkeep of religious and philanthropic institutions as well as their own internal religious business. Also "subject to public order, morals, and health" is Article 26.
In Church of God (Full Gospel) in India vs. K.K.R. Majestic Colony Welfare Assn.
[(2000) 7 SCC 282]
“The questions involved in this appeal are that in a country having multiple religions and numerous communities or sects, whether a particular community or sect of that community can claim right to add to noise pollution on the ground of religion. Whether beating of drums or reciting of prayers by use of microphones and loudspeakers so as to disturb the peace or tranquillity of the neighbourhood should be permitted. Undisputedly, no religion prescribes that prayers should be performed by disturbing the peace of others nor does it preach that they should be through voice amplifiers or beating of drums. In our view, in a civilized society in the name of religion, activities which disturb old or infirm persons, students or children having their sleep in the early hours or during daytime or other persons carrying on other activities cannot be permitted.”
Creating noise pollution violates the right to decent environment, which amounts to contravention of Article 21.
On the grounds that they violate the right to freedom of religion, laws are frequently challenged in court. In a socialist country, it is the government's responsibility to pass laws that will safeguard the less fortunate members of society. To promote social welfare, the Supreme Court has upheld laws that prohibit repressive or exploitational behaviour. "The core of religion is not disturbed with in providing for amenities for suffering of any kind," the Supreme Court has advised. Such actions cannot be said to as the "heart of religion." Chaarya Maharajshri Gujarat State v. NarendraPrasadjiAnandprasadjiMaharaj (1975) 1 SCC 1]
In order to uphold the state's secular nature, Article 28 forbids the teaching of any religion in any educational institution that is entirely supported by public money. If religious teaching is provided in such a facility for education, it would communicate to the public that the government is supporting that particular faith. No one is forced to participate in religious teaching in a state-recognized or state-funded educational institution; in the event of a juvenile, the guardian should have given their agreement. Every person has the right to their own conscience and/or to practise their own religion, hence this clause is necessary.
Article 29 (2), states, ‘No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.’. On any of the aforementioned grounds, it is forbidden to refuse admission to students in state-maintained or state-aided educational institutions. Clause (2) of Article 29 is comparable to Clauses (1) and (2) of Article 15's right against non-discrimination. The Cultural and Educational Rights category of fundamental rights includes Article 29.
Cultural and Educational Rights
This category of fundamental rights relates to minorities, particularly the creation and management of institutions of higher learning for minorities. It is crucial to emphasise at this point that minority educational institutions are not covered by the application of Article 28, which only applies to institutions of higher learning in the general category.
The title of Article 29 is "Protection of minorities' interests." "Any segment of the citizens resident in the territory of India or any part thereof having a separate language, script, or culture of its own shall have the right to retain the same," states Article 29(1). The state is required to make such preservation possible. Both the religious communities in the majority and the minority are covered by Article 29's first clause.
Article 30 addresses minority educational institutions: "(1)All minorities should have the right to create and run educational institutions of their choice, whether based on religion or language."
Although it has been attempted in Supreme Court and High Court decisions, the term "minority" is not defined by the Constitution. The Supreme Court ruled that in the context of education, "minority must be determined by reference to the entire population of that State" in Kerala Education Bill, 1957, re [AIR 1958 SC 956]. "The word'minority' is not defined in the Constitution; and in the absence of any special definition we must hold that any community, religious or linguistic, which is numerically less than fifty per cent of the population of the State is entitled to the fundamental right guaranteed by the article," the Kerala High Court stated in Aldo Maria Patroni vs. E.C. Kesavan [AIR 1965 Ker. 75]. The Kerala Education Bill ruling was upheld by the Supreme Court in T.M.A. Pai Foundation v. State of Karnataka [(2002) 8 SCC 481]. According to these rulings, the term "minority" refers to any religious or linguistic group that makes up less than 50% of the population of a given State. Therefore, even though a minority community may make up more than 50% of the population of a given State, Article 30 (1) nevertheless applies to such community.
The words ‘of their choice’ indicates that ‘there must be implicit in such fundamental right, the right to impart instruction in their own institutions to the children of their own Community in their own language’ [State of Bombay vs. Bombay Education Society : AIR 1954 SC 561].
The state may reasonably impose restrictions on this right. For instance, a minority school may adopt its own unique curriculum, but the same should adhere to some fundamental standards. The privilege granted to linguistic and religious minorities to run the educational institutions of their choice is not a right right. Regulation of this right is not unaffected. According to Ahmedabad St. Xavier's College Society v. State of Gujarat (1974) 1 SCC 717, "Regulatory measures are necessary for maintaining the educational character and content of minority institutions in the same way that regulatory measures are necessary for ensuring orderly, efficient, and sound administration."
According to this ruling, facilities for libraries and laboratories, teacher qualifications and appointment, employee working conditions, student health and hygiene, and other factors "are for uniformity, efficiency, and excellence in educational courses and do not violate any fundamental right of the minority institutions under Article 30."
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