Vineeth Krishna | 4th December 2017
This week in Constitution Making: The Constituent Assembly Criminalises Forced Labour
CAD India Blog
On 3rd December 1948, the Constituent Assembly took up Draft Article 17 ( Article 23 of the Constitution of India, 1950) - that criminalised forced labour - for debate. The Draft Article read:
Prohibition of traffic in human beings and enforced labour
(1) Traffic in human beings and beggar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence in accordance with law
(2) Nothing in this Article shall prevent the State from imposing compulsory service for public purposes. In imposing such service the State shall not make any discrimination on the ground of race, religion, case or class.
A number of amendments were moved to the Draft Article. Kazi Syed Karimuddin moved the first - his amendment allowed for forced labour to be used as punishment. He was concerned that the Draft Article may not allow jail authorities to make prisoners work and further pointed out that a similar provision existed in the American Constitution. H.V. Kamath proposed the term 'public service' be replaced by 'national or social service'. Giani Gurmukh Singh Musafir wanted 'prostitution' be specified in the text. Sardar Bhopinder Singh felt that the State had to pay for any compulsory service that it may require from citizens.
K.T. Shah moved two amendments: first, he wanted the system of 'Devadasi' – where young girls are married to a divine deity and are forced to provide sexual services for upper caste men – be specified in the text of the Draft Article as a practice that is abolished. Second, he proposed that after the words 'discrimination on the ground' the word 'only' be added which would make the text read: '..In imposing such a service the State shall not make any discrimination only on the ground of race, religion, caste or class'.
Durgabai, Renuka Ray and T.T Krishnamachari responded to K.T. Shah's proposal to include 'Devadasi' in the text of the Draft Article. Durgabai and T.T Krishnamachari, both from the Madras Province, while being appreciative of the spirit behind K.T. Shah's amendment, argued that State government legislation to ban Devadasi was sufficient. There was no need to explicitly mention the practice in the text of the Constitution. They pointed out that the State government of Madras had already done so and there was nothing to stop other governments to act in the same way.
Renuka Ray seemed less sure about agreeing or disagreeing with K.T. Shah's amendment. While she concurred with Durgbai that legislation dealt with the problem of Devadasi in Madras – a categorical mention of the practice in the text of the Constitution may be effective in getting rid of it in other States.
T.T Krishnamachari responded to Constituent Assembly members who proposed to expand the scope of the Article:
"There is no point in our trying to import into this particular Part reform of all the abuses, which our society is now heir to... My honourable Friend Shrimati Durgabai pointed out that this system of Devadasis obtaining it India has been abolished by legislation in Madras. There is nothing to bar other provinces from following suit and I think public opinion is sufficiently mobilised for all provinces undertaking legislation of that type. Why then put it into the fundamental rights, a thing which is vanishing tomorrow?.."
T.T.Krishnamachari put forward another somewhat peculiar and interesting argument - the listing out of oppressive social practices in the text of the Constitution would 'put a blot on the fair name of India'. T.T.Krishnamachari seemed to think that the expansion of the scope of the Draft Article to include a range of social practices that exist in the country, was akin to airing dirty laundry in public (the world).
Ambedkar made the last intervention in the debate. He accepted K.T. Shah's amendment of adding the word 'only' after the words 'discrimination on the ground'. He rejected H.V. Kamath's proposal of replacing 'public service' with 'national or social service' – he argued that 'public' was a wider phraseology and included both.
Ambedkar disagreed with Sardar Bhopinder Singh's proposal that any compulsory labour demanded from a citizen had to be paid for by the state by making two points: first, compulsory service when placed on a citizen could be done in a way that it does not affect the ability of the citizen to earn his/her livelihood. Second, if the State demands compulsory service/labour from all citizens and pays no one – the State is not really being unfair.
After Ambedkar's remarks, the Constituent Assembly put Draft Article 17 and the amendments proposed to vote. Only K.T. Shahs amendment was passed, and the Draft Article as modified by the amendment was adopted by the Constituent Assembly.