Direct Request (CEACR) - adopted 2018, published 108th ILC session (2019)

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. For 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 124A: sedition: 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 153A: promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to the maintenance of harmony by words, either spoken or written, or by signs, visible representation or otherwise;
• -section 153B: imputations, assertions prejudicial to national integration, made by words, either spoken or written, or by signs, or by visible representation, or otherwise; and
• -sections 295A 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 observed that the above provisions are worded in terms broad enough to lend themselves to being used 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 drew the Government’s attention to the fact that legal guarantees of the rights to freedom of thought and expression, freedom of peaceful assembly, freedom of association, as well as freedom from arbitrary arrest constitute an important safeguard against the imposition of forced or compulsory labour as a punishment for holding or expressing political or ideological views, as a means of political coercion or education (see 2012 General Survey on the fundamental Conventions, paragraph 302). The Committee therefore urged the Government to amend or repeal the penal provisions referred to above (sections 124A, 153A, 153B, 295A and 298 of the Penal Code), as well as to ensure that the provisions of the National Security Act, 1980, the Unlawful Activities (Prevention) Act, 1963, the Armed Forces (Special Powers) Act, 1958, the Armed Forces (Jammu and Kashmir) Special Powers Act, 1990, and the Chhattisgarh Special Public Safety Act, 2005, are applied in such a manner that no penalties involving compulsory labour may be imposed for the peaceful expression of political views opposed to the established system, for example by clearly restricting the scope of these provisions to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour.

The Committee notes the Government’s information in its report that sections 124A, 153A and 153B of the Penal Code do not prescribe imprisonment of both descriptions, but only simple imprisonment, which does not include compulsory prison labour (under section 53, only rigorous imprisonment includes compulsory prison labour). With regard to sections 295A and 298 of the Penal Code, which provide for penalties of imprisonment of either description, simple or rigorous, or fines or both, the Government states that these two sections do not pertain to political expression or curtailing expression of political views but aim to punish the deliberate insulting of any religion or religious beliefs with deliberate intent to harm the religious feelings of others. The Government further states that considering the diverse nature of the country, such provisions are essential as they are preventive measures for maintaining religious harmony in the country.

Referring to the Unlawful Activities (Prevention) Act of 1967, the Armed Forces (Special Powers) Act of 1958 and the Armed Forces (Jammu Kashmir) Special Powers Act of 1990, the Government indicates that there are no provisions under the above laws that prescribe penalties of imprisonment involving compulsory prison labour. With regard to the National Security Act of 1980, the Government states that the provisions relate to the preventive detention of persons and that no penalties are imposed. The Committee finally notes that the Chhattisgarh Special Public Safety Act, 2005 also refers to penalties of imprisonment, which do not involve compulsory labour. The Committee requests the Government to provide information on the application in practice of sections 295A and 298 of the Penal Code, including information on any convictions and penalties imposed, in particular any court decisions handed down involving rigorous imprisonment, involving compulsory prison labour, as well as copies of court decisions illustrating the scope of its application, in order to enable the Committee to assess the provision’s conformity with the Convention.

Article 1(d) of the Convention. Sanctions for participating in strikes. In its previous comments, the Committee noted that sections 3 and 4 of the Kerala Essential Services Maintenance Act (KESMA), 1994 which prohibit strikes in essential services, enforceable with sanctions of imprisonment, may involve compulsory labour. It 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 noted the following sections under KESMA: section 2(1) gives the state government wide discretionary powers to declare any service under the Government to be essential for the purposes of the Act, or any other service for which the Government is of the opinion that strikes therein would prejudicially affect the maintenance of any public utility service or would result in the infliction of grave hardship in the community; section 3 empowers the state government, by general or special order, to prohibit strikes in any essential service specified in the order; and sections 4 and 5 provide for penalties of imprisonment for up to six months, which may involve compulsory labour, and/or a fine for participation and instigation to participate in such strikes considered as illegal.

The Committee observed that the provisions of the KESMA are worded in broad terms and penalize with sanctions involving compulsory labour for the peaceful participation in strikes. The Committee 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, and that the authorities should not have recourse to measures of imprisonment against persons peacefully organizing or participating in a strike (see 2012 General Survey, paragraph 315).

The Committee notes the Government’s indication that it is awaiting a response from the State Government of Kerala in this regard. The Committee therefore once again requests the Government to indicate the measures taken or envisaged to ensure, both in law and in practice, that no sanction involving compulsory labour can be imposed for the mere fact of peacefully participating in strikes. Pending the adoption of such measures, the Committee requests the Government to provide information on the application in practice of sections 2(1), 4 and 5 of the KESMA, including copies of the state Government’s orders prohibiting strikes, as well as of relevant court decisions, specifying the penalties applied.