Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Abolition of Forced Labour Convention, 1957 (No. 105) - India (Ratification: 2000)

The Committee notes the information provided by the Government in its report, including copies of the legislation annexed thereto, such as Chapter XXXII of the Criminal Procedure Code, the Official Secrets Act 1923, the Merchant Shipping Act 1958, as amended by The Merchant Shipping (Amendment) Act 2002, and extracts from the Press Law and Repeal and Amendment Act 1922.

Article 1, subparagraph a, of the Convention. Sanctions involving compulsory labour as a means to punish the expression of political views or views ideologically opposed to the established system. In its earlier comments, the Committee referred to provisions of the Indian Penal Code, under which penalties of imprisonment (which may involve compulsory prison labour, if an offender is sentenced to rigorous imprisonment at the discretion of the court exercised under section 60 of the Penal Code) could be imposed in circumstances falling within the scope of the Convention, including:

–      section 124-A (sedition, i.e., bringing or attempting to bring into hatred or contempt or exciting disaffection towards the Government by words, either spoken or written, or by signs, or by visible representation, or otherwise);

–      section 153-A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony by words, either spoken or written, or by signs, or by visible representation, or otherwise);

–      section 153-B (imputations, assertions prejudicial to national integration, made by words, either spoken or written, or by signs, or by visible representation, or otherwise); and

–      sections 295-A and 298 (deliberate and malicious acts intended to outrage religious feelings by words, either spoken or written, or by signs, or by visible representation, or otherwise; or uttering words, etc., with deliberate intent to wound religious feelings).

The Committee notes the Government’s statement in its report that several of those provisions (sections 124A, 153A, 153B) refer only to imprisonment as such and that only two (sections 295A and 298) provide explicitly for the imposition of punishment of either simple or rigorous imprisonment. The Committee notes, however, that in both cases the court retains discretion under section 53 of the Penal Code to impose a sentence of rigorous imprisonment, and thereby a punishment involving compulsory labour. The Committee recalls that the Convention prohibits the use of sanctions involving compulsory labour as a means of political coercion or education or as a punishment for holding or expressing political views or views ideologically opposed to the established political, social or economic system. The Committee notes the Government’s indications that it is currently ascertaining from State governments and State courts the actual practice being followed in the pronouncement of sentences in cases involving offenses of this nature.

The Committee hopes that the Government will soon be in a position to communicate information on the application of the above penal provisions in practice, including copies of any court decisions defining or illustrating their scope. The Committee again requests a copy of the Newspapers Incitements to Offences Act (in effect in Jammu and Kashmir), so that the Committee may examine its conformity with the Convention.

The Committee notes that under section 3 of The Official Secrets Act, 1923 (OSA), any person who publishes or communicates to any other person any article or information for any purpose prejudicial to the interests of the State may be punished with a sentence of imprisonment that involves compulsory labour in accordance with section 53 of the Penal Code. The Committee observes, referring also the explanation in paragraph 159 of its 2007 General Survey on the eradication of forced labour, that this provision is worded in terms broad enough to be susceptible to application as a means of punishment for the expression of political views or views ideologically opposed to the established system, and that insofar as it is enforceable with sanctions involving compulsory labour, it falls within the scope of the Convention (paragraph 159).

The Committee hopes that the Government will provide information concerning the application and enforcement of the above provision of The Official Secrets Act in practice, including copies of any relevant court judgments and indicating the penalties imposed, as well as information on measures taken or envisaged to ensure conformity with the Convention on this point.

Article 1, subparagraph d, of the Convention. Sanctions for participating in strikes. The Committee in its previous comments noted the following provisions which prohibit strikes in essential services and provide for enforcement of such prohibitions with sanctions of imprisonment which, under section 53 of the Penal Code, may involve compulsory prison labour: sections 3 and 5 of the Essential Services Maintenance Act, 1981, and sections 3 and 4 of the Kerala Essential Services Maintenance Act, 1994.

The Committee noted that the prohibitions laid down in these provisions go well beyond the concept of essential services in the strict sense of the term; that is, those services the interruption of which would endanger the life, personal safety or health of the whole or part of the population. The definition of essential services contained in section 2 of the 1981 Act includes a range of services the interruption of which would not necessarily endanger the life, personal safety or health of the population (such as postal services, railway or transport service generally, aircraft repairs, petroleum sector and ports (loading and unloading), banking and the Mint, etc.). The Committee noted that the Government referred to official notifications dated 27 September 1993, which specified a list of services declared essential under the Kerala Act of 1994, including services in connection with food and civil supplies and the distribution of ration items; the transport of goods and of bus passengers; and water transport services, all of which are beyond the scope of essential services in the strict sense of the term. Further, the Kerala Act of 1994 gives the Government wide discretionary powers to declare any service under the Government to be essential for purposes of the Act, or that strikes therein would prejudicially affect the maintenance of any public utility service or would result in the infliction of grave hardship on the community (section 2(a)).

The Committee referred in this connection to paragraph 185 of its General Survey of 2007 on the eradication of forced labour, in which it pointed out that penalties (involving compulsory labour) for participation in strikes in the civil service or other essential services may be applied only to essential services in the strict sense of the term, as explained above. The Committee therefore requested the Government to re-examine the above provisions with a view to bringing the legislation into conformity with the Convention.

Noting that the Government’s report contains no new information on this issue, the Committee reiterates its hope that the Government will take measures to amend or repeal the provisions of the Essential Services Maintenance Act, 1981, and the Kerala Essential Services Maintenance Act, 1994, noted above, so as to bring its law into conformity with the Convention on this point. Pending the adoption of such measures, the Committee once again requests the Government to provide information on the application of the above provisions in practice, including copies of any relevant court decisions and indicating the penalties imposed. The Committee once again asks the Government to provide copies of notifications Nos 55099-IV/SSA4/93/Home and 55099‑V/SSA4/93/Home, dated 27 September 1993, as well as the 2002 judgment of the Kerala High Court construing the Kerala Act, to which it has previously referred.