UNIVERSITY INSTITUTE OF LEGAL STUDIES,

PANJAB UNIVERSITY, CHANDIGARH

ILO Convention No. 105 (article 1-2), constitutional provisions

for elimination of all forms of forced or compulsory labour
A Project Report Submitted as a part of curriculum of B.Com. LL.B. (Hons.) in the subject of
Labour Laws and International Labour

Submitted To: Submitted By:

Ms. Manika Vikramjeet singh
Section– D
Roll No.- 198/18

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 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher Ms. Manika who gave me
the golden opportunity to do this wonderful project on the topic ILO Convention No. 105
(article 1-2), constitutional provisions for elimination of all forms of forced or compulsory
labour which also helped me in doing a lot of research and I came to know about so many new
things. She provided with guidelines from time to time. Her profound knowledge of the subject
helped me in writing meaningful content in the project. I am really thankful to her. Secondly I
would also like to thank my parents and friends who supported me morally as well as helped
me in finding relevant material regarding the project so that I could complete it in the limited
time frame.

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 Index

Sr. no. contents page

1. Brief introduction to ILO 4
2. Ilo core conventions 5
3. Ilo convention 105 6
4. India and ilo and articles 23 and 24 8
5. conclusion 11
6. Bibliography 12

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BRIEF INTRODUCTION TO INTERNATIONAL LABOUR
ORGANIZATION:
The International Labour Organization (ILO) is a United Nations agency dealing with labour
issues, particularly international labour standards, social protection, and work opportunities for
all.

History
The ILO was established as an agency for the League of Nations following World War I.

• It was established by the Treaty of Versailles in 1919.

• Its founders had made great strides in social thought and action before the establishment
of the organization itself.
• It became the first specialized agency of the United Nations (UN) in the year 1946.
• The ILO has played a significant role in promoting labour and human rights. It had held
a significant position during the Great Depression (1930s) for ensuring labour rights.
• It played a key role in the decolonization process and in the victory over apartheid in
South Africa.
• The organization got the Nobel Peace Prize in 1969, for its efforts to improve peace
amongst the classes, and for promoting justice and fair work for the workers.

Main bodies
The ILO accomplishes its work through three main bodies which comprise governments',
employers' and workers' representatives:

• The International labour Conference sets the International labour standards and the
broad policies of the ILO. It meets annually in Geneva. Often called an international
parliament of labour, the Conference is also a forum for discussion of key social and
labour questions.
• The Governing body is the executive council of the ILO. It meets three times a year
in Geneva. It takes decisions on ILO policy and establishes the programme and the
budget, which it then submits to the Conference for adoption.
• The International Labour Office is the permanent secretariat of the International
Labour Organization. It is the focal point for International Labour Organization's
overall activities, which it prepares under the scrutiny of the Governing Body and under
the leadership of the Director-General.

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International Labour Organization – Core Conventions

The eight fundamental conventions form an indispensable part of the United Nations Human
Rights Framework, and their sanction is an important sign of member States’ commitment to
human rights. Overall, 135 member States have ratified all eight fundamental conventions.

The eight-core conventions of the ILO are:

• Forced Labour Convention (No. 29)

• Abolition of Forced Labour Convention (No.105)
• Equal Remuneration Convention (No.100)
• Discrimination (Employment Occupation) Convention (No.111)
• Minimum Age Convention (No.138)
• Worst forms of Child Labour Convention (No.182)
• Freedom of Association and Protection of Right to Organised Convention
(No.87)
• Right to Organise and Collective Bargaining Convention (No.98)

The conventions are highly relevant due to the economic challenges faced by workers
all around the world.

The eight-core conventions of the ILO provide relevance and bring justice to the
workers all around the world. The conventions are formulated keeping in mind the
economic challenges faced by the workers of all classes. They help the workers get fair
pay for their work and get the opportunity to be treated equally. It also regulates the
employment of children for minimum wages.

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Abolition of Forced Labour Convention, 1957 (No. 105)

INTRODUCTION
Despite long-running international efforts to end forced labour, including modern forms of
slavery and human trafficking, it remains a prevalent occurrence throughout the world. The
most recent data from the International Labour Organization (ILO) is disturbing. It discloses
that at least 20.9 million people around the world are the victims of forced labour today. 18.7
million of these victims of forced labour are exploited in the private economy by individuals
or enterprises. In the private economy, 4.5 million people are victims of forced sexual
exploitation. The remaining 14.2 million people, including migrant workers, are exploited in
economic activities such as agriculture, construction, domestic work, and manufacturing.
Outside of the private economy, 2.2 million people are victimized by state-imposed forms of
forced labour, including in prisons and in work imposed by the state military or by rebel armed
forces. The misery represented by these numbers makes it clear why the subject of forced
labour remains a matter of widespread international concern. This is true even though it is
generally considered that customary international law prohibits all states from exacting or
tolerating forced labour by others. Unfortunately, the issue of forced labour is often
misunderstood, underestimated or ignored.
ILO Background on Forced Labour
Two major ILO Conventions prohibit forced or compulsory labour in all its forms—
Conventions 29 and 105. Convention 29 was adopted in 1930. Convention 105 was adopted in
1957. It advances Convention 29 by requiring the immediate abolition of forced labour in five
specific cases related to forced labour by the state for economic purposes or as a means of
political coercion.
The Abolition of Forced Labour Convention (No. 105) was formally adopted in 1957 and
entered into force in January 1959. The Convention builds on the Forced Labour Convention
(No. 29) from 1930 and sets up stricter principles regarding the exemptions from forced labour.
This includes for instance the use of forced labour as a punishment for holding specific political
views or as a punishment for strikes. Furthermore, it prohibits the use of forced labour for
mobilising labour for economic development or as a measure of labour discipline. The
Convention’s implementation is supervi.sed by the ILO’s Committee of Experts. Every three
years, a State Party must report on the current state of implementation, which is reviewed and
evaluated by the Committee of Experts
WHAT IS FORCED LABOUR?
At the international level, the term “forced labour” is defined in the ILO Convention on Forced
Labour, 1930 (No. 29) as “all work or service that is exacted from any person under the menace
of any penalty and for which the said person has not offered himself voluntarily”. ILO
Convention No. 29 is supported by the ILO Convention on the Abolition of Forced Labour,
1957 (No. 105) that specifies that forced labour, as defined in Convention 29, can never be
used as a means of political coercion, for the purpose of economic development,
discrimination, labour discipline or as a punishment for having participated in strikes.

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ILO CONVENTION 105:
Preamble
The General Conference of the International Labour Organisation,
Having been convened at Geneva by the Governing Body of the International Labour Office, and having
met in its Fortieth Session on 5 June 1957, and
Having considered the question of forced labour, which is the fourth item on the agenda of the session,
and
Having noted the provisions of the Forced Labour Convention, 1930, and
Having noted that the Slavery Convention, 1926, provides that all necessary measures shall be taken to
prevent compulsory or forced labour from developing into conditions analogous to slavery and that the
Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices
Similar to Slavery, 1956, provides for the complete abolition of debt bondage and serfdom, and
Having noted that the Protection of Wages Convention, 1949, provides that wages shall be paid
regularly and prohibits methods of payment which deprive the worker of a genuine possibility of
terminating his employment, and
Having decided upon the adoption of further proposals with regard to the abolition of certain forms of
forced or compulsory labour constituting a violation of the rights of man referred to in the Charter of
the United Nations and enunciated by the Universal Declaration of Human Rights, and
Having determined that these proposals shall take the form of an international Convention,
Adopts this twenty-fifth day of June of the year one thousand nine hundred and fifty-seven the following
Convention, which may be cited as the Abolition of Forced Labour Convention, 1957:

Article 1
Each Member of the International Labour Organisation which ratifies this Convention undertakes to
suppress and not to make use of any form of forced or compulsory labour--
(a) 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;
(b) as a method of mobilising and using labour for purposes of economic development;
(c) as a means of labour discipline;
(d) as a punishment for having participated in strikes;
(e) as a means of racial, social, national or religious discrimination.

Article 2
Each Member of the International Labour Organisation which ratifies this Convention undertakes to
take effective measures to secure the immediate and complete abolition of forced or compulsory labour
as specified in Article 1 of this Convention.

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India & ILO
India is a founder member of the International Labour Organization, which came into existence
in 1919. At present the ILO has 187 Members.
There are 47 ILO conventions and 1 protocol ratified by India. Out of 47 Convention and 1
protocol ratified by India, of which 39 are in force.
India ratified the convention number 105 on 18 May 2000 and it is still in force.

Constitutional provisions for Elimination of all forms of

Forced or Compulsory Labour

The principle of the elimination of all forms of forced or compulsory labour is recognized in
India. The concept of bonded labour in India is not novel; rather it is another form of slavery
which is an amalgamation of inhumane exploitation and discrimination.
It originates from underlying socio-economic structures which can be mainly characterised as
the "caste system" wherein the majority of bonded labours belong to the Dalit or indigenous
class of people like the Adivasis. In the ancient Indian era, there was proximity between the
occupational status and the caste of an individual, the same system continues to be prevalent
even today. The entire mechanism of bonded labour was much more prevalent in the pre-
independence period, following which Article 23 of Indian constitution was drafted which
prohibited the practice of any form of forced labour and made all such practices punishable.
The Right against Exploitation is enshrined in Articles 23 and 24 of the Indian Constitution.
Article 23 – Prohibition of traffic in human beings and forced labour
Article 23(1): Traffic in human beings and the beggar and other similar forms of forced labour
are prohibited and any contravention of this provision shall be an offence punishable in
accordance with the law.
Article 23(2): Nothing in this article shall prevent the State from imposing compulsory service
for public purposes, and in imposing such service the State shall not make any discrimination
on grounds only of religion, race, caste or class or any of them.

• The State is obliged to protect citizens from these evils by taking punitive action against
perpetrators of these acts (which are considered crimes), and also take positive actions
to abolish these evils from society.
• Under Article 35 of the Constitution, the Parliament is authorized to enact laws to
punish acts prohibited by Article 23.
• Clause 2 of Article 23 implies that compulsory services for public purposes (such as
conscription to the armed forces) are not unconstitutional.
• Laws passed by the Parliament in pursuance of Article 23:
• Suppression of Immoral Traffic in Women and Girls Act, 1956
• Bonded Labour System (Abolition) Act, 1976

Exploitation implies the misuse of others’ services by force and/or labour without payment.
There were many marginalized communities in India who were forced to engage in manual

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 and agricultural labour without any payment. Labour without payment is known as begar.
Article 23 forbids any form of exploitation .Also; one cannot be forced to engage in labour
against his/her will even if remuneration is given. Forced labour is forbidden by the
Constitution. It is considered forced labour if the less-than-minimum wage is paid. This
article also makes ‘bonded labour’ unconstitutional. Bonded labour is when a person is
forced to offer services out of a loan/debt that cannot be repaid. The Constitution makes
coercion of any kind unconstitutional. Thus, forcing landless persons into labour and
forcing helpless women into prostitution is unconstitutional. The Article also makes
trafficking unconstitutional. Trafficking involves the buying and selling of men and women
for illegal and immoral activities. Even though the Constitution does not explicitly ban
‘slavery’, Article 23 has a wide scope because of the inclusion of the terms ‘forced labour’
and ‘traffic’.

Article 23 protects citizens not only against the State but also from private citizens.

Article 24 – Prohibition of employment of children in factories, etc.

Article 24 says that “No child below the age of fourteen years shall be employed to work in
any factory or mine or engaged in any other hazardous employment.”

• This Article forbids the employment of children below the age of 14 in any hazardous
industry or factories or mines, without exception.
• However, the employment of children in non-hazardous work is allowed.

Laws that were passed in pursuance of Article 24 in India:

The Factories Act, 1948

This was the first act passed after independence to set a minimum age limit for the employment
of children in factories. Act set a minimum age of 14 years. In 1954, this Act was amended to
provide that children below the age of 17 could not be employed at night.

The Mines Act of 1952

This Act prohibits the employment of people under the age of 18 years in mines.

The Child Labour (Prohibition and Regulation) Act, 1986

This was a landmark law enacted to curb the menace of child labour prevalent in India. It
described where and how children could be employed and where and how this was forbidden.
This Act designates a child as a person who has not completed his/her 14th year of age. The
1986 Act prohibits the employment of children in 13 occupations and 57 processes.

Child Labour (Prohibition & Regulation) Amendment Act, 2016

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This Act completely forbids the employment of children below 14 years of age. It also bans
the employment of people between the ages of 14 and 18 in hazardous occupations and
processes. Punishments to violators of this law were made stricter by this amendment act. This
Act allows children to be employed in certain family occupations and also as artists.
Child Labour (Prohibition and Regulation) Amendment Rules, 2017
The government notified the above Rules in 2017 to provide a broad and specific framework
for prevention, prohibition, rescue, and rehabilitation of child and adolescent workers. The
Rules clarified on issues concerning the employment of family enterprises and also provides
safeguards for artists in that the working hours and conditions are specified.
In Peoples Union for Democratic Rights v. Union of India, 1982 the Supreme Court
considered the scope and ambit of Article 23 in details. The Court held that the scope of Article
23 is wide and unlimited and strikes at "traffic in human beings" and "begar and other forms
of forced labour" wherever they are found. It is not merely "begar" which is prohibited by
Article 23 but also all other forms of forced labour, "Begar is a form of forced labour under
which a person is compelled to work without receiving any remuneration. This Article strikes
at forced labour in whatever form it may manifest itself, because it is violative of human dignity
and contrary to basic human values.
In Sanjit Roy v. State of Rajasthan 1983, has been held that payment of wages lower than
minimum wages to person employed on Famine Relief Work is violative of Article 23.
Whenever any labour or service is taken by the State from any person who is affected by
drought and scarcity condition State cannot pay him less wage than minimum wage on
ground that it is given them to help to meet famine situation. State cannot take advantage of
their helplessness.
In Deena v. Union of India 1983 it was held that labour taken from prisoners without paying
proper remuneration was "forced labour" and violative of Art. 23 of the Constitution. The
prisoners are entitled to payment of reasonable wages for the work taken from them and the
Court is under duty to enforce their claim.
In M. C. Mehta v. State of Tamil Nadu
The Supreme Court has held that children below the age of 14 years cannot be employed in
any hazardous industry. Exhaustive guidelines was laid down as to how State Authorities
should protect economic, social and humanitarian rights of millions of children , working
illegally in public and private sections.
FACTS: Sivakasi, a town in the state of Tamil Nadu (hereinafter referred to as the State) was
one of the worst-hit towns in terms of child labour in the country. A solicitous lawyer, M.C.
Mehta concerned by the unbearable state of child labour in the town filed a petition under
Article 32 of the Indian Constitution. He contended that the employment of children in
hazardous match stick factories was morally preposterous and constitutionally invalid. The
respondent government did not oppose the claims and submit ed ideas to deplete the problem.
Therefore, the court issued certain directions suggesting means to improve the lives of the
affected children. However, subsequent to this order an accident occurred in one of Sivakasi’s
fireworks factories. The court took suo moto cognizance of this incident.
Issues before the court

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The main issue before the court was to provide effective alternative means to curb the
employment of children in hazardous labour. The court also dealt with issues related to the
education, growth and development of children.

The court held that Child labour was not an issue in Sivakasi alone. Therefore, it should be
treated as a national issue. It observed that the rights of children were protected under
Articles 24, 39(e) and 9(f), 41, and 47 of the Indian Constitution. These articles mainly
provided for the growth and development of a child by banning child labour, providing free
and compulsory education to children, providing a dignified standard of living to the
children, etc. Domestic laws such as the Apprentices Act, Beedi and Cigar Workers
Conditions of Employment Act, Child Labour (Prohibition and Regulation) Act also
protected such rights. It was also noted that India ratified the Convention on the Rights of the
Child, which not only protects the child’s civil and political right but also extends protection
to child’s economic, social, cultural and humanitarian rights.

The court, however, concluded that the main cause was the deteriorating financial conditions
of the family which compelled the child to work and earn. It was held that the growth and
development of the child were necessary to fulfil the intention of the legislation. Therefore,
the formation of a Child Labour Rehabilitation cum Welfare Fund (hereinafter referred to as
The Fund) was ordered. Any person contravening the provisions of the aforementioned
legislation, in other words, any person employing a child into hazardous labour would have to
pay a sum of Rs. 20,000, which shall be deposited in The Fund. The amount deposited shall
be used for the growth and development of the child.

To ensure the efficacious implementation of the aforementioned, the court ordered that-

1. The government shall carry out a survey of child labour within 6 months.
2. A criterion assessing and observing the areas of employment which shall be deemed to
be hazardous for employment be formed.
3. Employment should be given to the parents or any adult of the family at the same place
where the child was employed.
4. In cases where employment is not provided to the parents or any adult of the family, an
amount of Rs. 85,000 be paid to the parents of the child for the welfare of the child. In
case, the parents fail to send the child for education, the payment shall cease.
5. The education of the child in an esteemed institution or facility should be ensured.
6. The inspectors of the concerned shall ensure that education is provided free of cost, as
mandated under Article 45 of the Indian Constitution.

We have DPSP in constitution which directs State to make laws and policies by taking them as
guidelines or roadmap.
Article 39(e) the state shall in particular direct its policy towards securing that the health and
strength of workers, men and women, and the tender age of children are not abused and that
citizens are not forced by economic necessity to enter avocations unsuited to their age or
strength.
Article 42 The State shall make provision for securing just and humane conditions of work and
for maternity relief

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 CONCLUSION

Laws and regulations in the country do suppress forced or compulsory labour as defined in
Article 1 of ILO Convention No. 105. The only exception made is article 23(2) of the
Constitution, which states that “nothing in this Article [(23) (1)] shall prevent it from imposing
compulsory services for public purposes and in imposing such services the state shall not make
any distinction on grounds of only religion, race, caste or class or any of them”. The only
legislation enacted under the constitutional provisions is the National Service Act, 1972, which
envisages requisitioning of the services of doctors, engineers or technologists for a specific
period in national emergencies. Though this legislation was enacted in 1972 to meet an
emergency no such occasion has so far arisen to invoke the above legislation. Appropriate legal
remedies exist in India to ensure compliance with the principles as specified under Article 1 of
ILO Convention No. 105. Violations, if any, are dealt with by the judiciary. Article 23 of the
Constitution guarantees the right against exploitation which is a fundamental right implying
that it cannot be taken away by the legislature. Forced labour, as defined in Article 1 of
Convention No. 105, is punishable in accordance with the law. Appropriate legal and judicial
mechanisms and procedures exist to address such violations, if any.

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 BIBLIOGRAPHY

• https://labour.gov.in/lcandilasdivision/india-ilo
• https://www.ilo.org
• https://www.legalserviceindia.com
• Constitution of India , Bare Act

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