Prohibition and Legal Regulation of Forced Labour and Human Trafficking under Article 23 in India

Topic 13: Article 23 of the Constitution of India 

Prohibition of traffic in human beings

The Indian Constitution's Article 23 of Part III guarantees citizens' fundamental rights by addressing the unlawful practice of forced labour and human trafficking. Article 23 aims to protect people from being victims of activities similar to slavery and to foster equality and integrity among all citizens. It strives to prevent exploitation of people by embracing their intrinsic worth and liberty. Human trafficking can occur through tactics such as fraud, manipulation or coercion. Traffickers often prey on vulnerabilities such as economic hardships, lack of education or immigration status to exploit individuals, promising a fancy job with a better life and then trapping victims into situations of exploitation.

The following practices are expressly forbidden by Article 23: 

Beggar: This is an example of forced labour, which involves unpaid and involuntary work, where individuals are compelled to work against their will without compensation. 

Bonded labour: Article 23 prohibits debt bondage, a form of forced labour where individuals work to repay debts, often receiving minimal wages and passing these debts to future generations.

Human trafficking: It means the illegal trade in humans, involving women and children, encompasses slavery, even if not explicitly mentioned in Article 23. The Suppression of Immoral Traffic in Women and Girls Act, 1956, was enacted under Article 23 to criminalise human trafficking.

Types of Human Trafficking:

• Sexual trafficking is the exploitation of individuals and forcing them into performing sexual acts as a condition of the traffickers facilitating or arranging their movement.

• The transfer of workers for the purpose of involuntary labour or services, including domestic or involuntary servitude, bonded or child labour, is known as Labour trafficking.

• Child Trafficking is described as the selection of minors for enslavement, forced labour, or other forms of exploitation and their transportation, harbouring, transfer, or forced labour. It is still widespread in our nation, and is very challenging.

• Organ trafficking varies, with victims either forced to donate or choosing to sell organs for money or goods, often receiving little or no compensation from traffickers.

• Marriage Trafficking i.e. forced marriage, violates the victims' autonomy and freedom. The United Nations has designated it a violation of human rights.

This article prohibits any conduct mentioned in Article 23, except for Article 23(2), which allows the state to require mandatory public services like national defence, education, and public utilities. However, such mandates cannot discriminate based on religion, race, caste, or class.

Smuggling individuals is distinct from human trafficking. Smuggling breaches destination country immigration laws without violating rights, while trafficking involves rights violation through compulsion and exploitation, constituting a crime against people. 

In the case of Gaurav Jain v. Union of India, the Supreme Court ruled that although trafficked individuals have the right to live in dignity, doing so is often difficult due to the trauma or suffering they have experienced. So that they might also have equal possibilities and can live their lives with dignity, the Court commanded the creation of a commission for the rehabilitation of the trafficking persons and their children who become the victims.

The Immoral Trafficking Prevention Act (ITPA) in India mandates sentences from seven years to life imprisonment for human trafficking for commercial sexual exploitation. The Prevention of Child from Sexual Offenses Act of 2012 (POCSO) specifically protects children from sexual abuse. The 2013 Criminal Law Amendment Act introduced sections 370 and 370A in the Indian Penal Code, addressing human trafficking.

Bonded Labour System (Abolition) Act, 1976: imprisonment up to 3 years and fine up to ₹ 2000

Transplantation of Human Organs and Tissues Act, 1994: imprisonment for a term which shall not be less than 5 five years but which may extend to 10 ten years and shall be liable to fine which shall not be less than ₹ 20 lakh but may extend to ₹1 crore 

Thus, Article 23 stands as a pillar of protection against human trafficking, its inclusion reflects India’s commitment to upholding Human Rights and preventing Exploitation. While legal provisions are essential, addressing human trafficking requires collective efforts from the government agencies, society and international nations to ensure that the rights and dignity of every individual are safeguarded.

This article was written by Ms Almira Lasrado Senior Associate at Vis Legis Law Practice, Advocates .