Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

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

Article 1(a) of the Convention. Sanctions involving compulsory labour as a punishment for the expression of political views or views ideologically opposed to the established system. The Committee previously noted the following provisions of the 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:

• – 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).

In its report, the Government reiterates its previous statement that some of the above provisions (sections 124A, 153A, 153B) refer only to imprisonment as such, and only two of them (sections 295A and 298) provide explicitly for the imposition of punishment of either simple or rigorous imprisonment. The Committee previously noted, 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, referring also to paragraph 154 of its 2007 General Survey on the eradication of forced labour, that the Convention does not prohibit punishment by penalties involving compulsory labour of persons who use violence, incite to violence or engage in preparatory acts aimed at violence. But sanctions involving compulsory labour fall within the scope of the Convention where they enforce a prohibition of the peaceful expression of views or of the opposition to the established political, social or economic system. The Committee observes that the above provisions are worded in terms broad enough to lend themselves to application as a means of punishment for the expression of views, and in so far as they are enforceable with sanctions involving compulsory labour, they fall within the scope of the Convention.

Noting also the Government’s indication that, according to reports from State Governments, no cases pertaining to sections 295A and 298 have been registered and that the offences in the above sections are very rare, the Committee requests the Government to provide information on the application of all the abovementioned penal provisions in practice, including copies of any court decisions defining or illustrating their scope, as soon as such information becomes available. 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 previously noted 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 to the explanations in paragraph 159 of its 2007 General Survey referred to above, 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.

Noting that the Government’s report contains no information on this issue, the Committee reiterates its hope that the Government will provide information concerning the application 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(d). Sanctions for participating in strikes. The Committee previously noted the following provisions prohibiting strikes in essential services, enforceable with sanctions of imprisonment involving compulsory labour as explained above:

• – 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 of strikes 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 Committee recalls that Article 1 (d) of the Convention prohibits the use of any form of forced or compulsory labour for having participated in strikes. It also refers in this connection to paragraph 189 of its 2007 General Survey referred to above, where it recalled the importance it attaches to the general principle that, in all cases and regardless of the legality of the strike action in question, any sanctions imposed should not be disproportionate to the seriousness of the violations committed.

Noting that the Government’s report contains no information on this issue, the Committee hopes that the necessary measures will be taken to amend or repeal the above provisions of the Essential Services Maintenance Act, 1981, and the Kerala Essential Services Maintenance Act, 1994, so as to ensure that no sanctions involving compulsory labour can be imposed for the mere fact of a peaceful participation in strikes. 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.