Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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 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 the maintenance of harmony by words, either spoken or written, or by signs, 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 once again notes the Government’s statement in its report 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 nevertheless observes that, however, in both cases the court retains discretion under section 60 of the Penal Code to impose a sentence of rigorous imprisonment, and therefore a punishment involving compulsory labour.

The Committee notes the Government’s statement that high courts at the state and union territory levels have indicated that a small number of cases pertaining to the sections of the Penal Code referred to above have been registered. The Committee notes with regret that, although requested to do so in its previous comments, the Government does not provide further information on the number and content of such cases nor on the sanctions applied, which does not enable the Committee to assess how the provisions of the Penal Code referred to above are applied in practice.

The Committee notes however from the website of the government of the state of Maharashtra that, on 27 August 2015, it issued a circular to police containing new guidelines with regard to section 124-A of the Penal Code, according to which sedition can be invoked against “whoever, by words, either spoken or written, or by signs or by visible representation, is critical of politicians or elected representatives belonging to the government”. The Committee notes that the circular was finally withdrawn as a result of protests from civil society and an order by Bombay High Court to withdraw it or issue a new circular. The Committee notes that several cases refer to sedition charges in states and union territories. It notes in this regard that, on 30 October 2015, the police in the state of Tamil Nadu arrested a folk singer under sedition charges for two songs that criticize the state government and that the singer was remanded in custody for 15 days.

The Committee further notes that the Special Rapporteur on the situation of human rights defenders and the Special Rapporteur on extrajudicial, summary and arbitrary executions considered that widespread deficiencies in the full implementation of the legal framework that guarantees fundamental freedoms in India, such as the Right to Information Act (RTI), at both central and state levels, have also adversely affected the work and safety of human rights defenders, especially those exposing mining corruption, environmental and poverty issues, land rights of marginalized communities and accountability concerns. While the enactment of the RTI in 2005 with the aim of ensuring access to information and transparency on violations of human rights, was a major achievement for India, the Special Rapporteurs were alarmed by reports of what is now commonly described as “right to information killings”. Twelve RTI activists were killed in 2010 and 2011 (A/HRC/19/55/Add.1 and A/HRC/23/47/Add.1).

The Committee notes that several United Nations bodies, as well as Special Rapporteurs, also refer to numerous allegations of arbitrary detention and violations of freedom of expression, peaceful assembly and association of human rights defenders and journalists under counter-terrorism legislation, such as: 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. The Special Rapporteur on the situation of human rights defenders indicated that she was of the view that the broad and vague definitions of terrorism contained in these security laws had allowed the state apparatus to wrongfully target defenders (A/HRC/19/55/Add.1). In this regard, the Committee notes Opinion No. 45/2012 adopted by the Working Group on Arbitrary Detention concerning the arbitrary detention of a 15-year-old student under the Public Safety Act as a result of his alleged involvement in “anti-social activity aimed at disturbing public peace and tranquillity” (A/HRC/WGAD/2012/45). The Committee notes that, as a result, recommendations for the repeal of the Armed Forces (Special Powers) Act and the Armed Forces (Jammu and Kashmir) Special Powers Act were made by several United Nations bodies, as well as Special Rapporteurs (E/C.12/IND/CO/5, A/HRC/23/47/Add.1, A/HRC/26/38/Add.1, CEDAW/C/IND/CO/4-5 and A/HRC/19/55/Add.1). The Special Rapporteur on the situation of human rights defenders also recommended the repeal of the National Security Act, the Unlawful Activities Prevention Act and the Chhattisgarh Public Safety Act.

Noting all this information with concern, the Committee observes 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 draws 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 urges the Government to amend or repeal the penal provisions referred to above (sections 124-A, 153-A, 153-B, 295-A 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 requests the Government to provide information in its next report on any progress made in this respect. 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.

The Committee is also raising other matters in a request addressed directly to the Government.