Direct Request (CEACR) - adopted 2012, published 102nd ILC session (2013)

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. 1. Penal Code. Over a number of years, the Committee has been referring to the following provisions of the Penal Code, under which penalties of imprisonment (which may involve compulsory prison labour under section 53 of the Penal Code, 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).

The Committee previously noted the Government’s repeated statement in its reports that some of the above provisions (sections 124-A, 153-A, 153-B) refer only to imprisonment as such, and only two of them (sections 295-A and 298) provide explicitly for the imposition of punishment of either simple or rigorous imprisonment. The Committee noted, however, that in both cases the court retains discretion under section 60 of the Penal Code to impose a sentence of rigorous imprisonment, and thereby a punishment involving compulsory labour.

The Committee previously noted the Government’s indication in its report that no cases pertaining to sections 295-A and 298 have been registered. It notes that the Government’s latest report contains no information on the above issue.

The Committee recalls, referring also to the explanations contained in paragraph 303 of its 2012 General Survey on the fundamental Conventions concerning rights at work, 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.

The Committee therefore hopes that measures will be taken with a view to repealing or amending the abovementioned penal provisions in order to bring legislation into conformity with the Convention. Pending the adoption of such measures, the Committee requests the Government once again to provide information on the application of these provisions in practice, including copies of any court decisions defining or illustrating their scope, as soon as such information becomes available.

2. Official Secrets Act. The Committee notes the Government’s explanation in its report concerning the application of certain provisions of the Official Secrets Act, 1923.

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 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 notes the Government’s indication in the report that the Essential Services Maintenance Act (1981) lapsed in September 1990, since it was decided not to extend its validity, after consultation with the State Governments and the Central Ministries/Departments. The Committee requests the Government to communicate, with its next report, a copy of the decision taken to that effect.

As regards the Kerala Essential Services Maintenance Act (1994) referred to above, the Government undertakes to send the information regarding its validity and application in practice, including the relevant court decisions, as soon as such information is received from the Kerala Government. The Committee hopes that the Government will not fail to supply such information in its next report.