Abolition of Forced Labour Convention, 1957 (No. 105) - India (Ratification: 2000)

Direct Request (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

Article 1(d). Sanctions for participating in strikes. In relation to the Essential Services Maintenance Act (KESMA), 1994, which establishes sanctions of imprisonment that may involve compulsory labour for participation and instigation to participate in strikes in essential services considered as illegal (sections 4 and 5 of the Act), the Committee recalls that the prohibition of strikes laid down in these provisions goes well beyond the concept of essential services in the strict sense of the term, as it gives the state government wide discretionary powers to declare any service under the Government to be essential for the purposes of the Act, or if 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 on the community (section 2(1) of the Act). The Committee notes the Government’s repeated statement that it is awaiting a response from the state government of Kerala, in that respect. The Committee recalls that, in all cases and regardless of the legality of the strike action, the Convention prohibits the imposition of compulsory labour, including compulsory prison labour, on persons peacefully organizing or participating in a strike. The Committee 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 on relevant court decisions, specifying the penalties applied, as well as copies of the state government’s orders prohibiting strikes.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Previous comment

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. The Committee recalls that, for a number of years, it has been referring to several 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. It previously noted the Government’s statement that, while sections 295-A and 298 of the Penal Code on acts intended to outrage religious feelings explicitly provide for the imposition of punishment of either “simple imprisonment” or “rigorous imprisonment”, sections 124-A (sedition), 153-A (promoting enmity between different groups) and 153-B (imputations and assertions prejudicial to national integration) of the Penal Code merely refers to “imprisonment” which should be interpreted as “simple imprisonment” that does not involve an obligation to perform labour.

The Committee notes that the Government refers, in its report, to the 2021 Crime in India report from the National Crime Records Bureau (NCRB), which makes a general reference to sections 295 to 297 of the Penal Code, under which 1,475 new cases were registered in 2021. Recalling that section 124-A of the Penal Code, which criminalizes sedition, establishes penalties of imprisonment, including imprisonment for life, which may involve an obligation to perform labour pursuant to section 55 of the Penal Code, the Committee notes that, according to the NCRB, in 2021, 76 cases of sedition were registered, while 189 cases were pending investigation from previous years and 86 persons were arrested under sedition charges. Since 2019, a total of 312 sedition cases have been registered according to NCRB’s data. In that regard, the Committee observes that, according to the NCRB, in 2021, 814 cases of violation of the Unlawful Activities (Prevention) Act were registered, while 4,013 cases were pending investigation from previous years and 1,621 persons were arrested under the Act. In that regard, the Committee notes that, as a result of a petition made before the Supreme Court on February 2021 to challenge the constitutionality of section 124-A of the Penal Code (S.G. Vombatkere v. Union of India [(2022) 7 SCC 433]), on 11 May 2022, the Supreme Court issued an order that suspended pending trials, appeals and proceedings related to sedition charges. It notes that, on that occasion, the Government indicated that it had decided to “re-examine and reconsider” section 124-A of the Penal Code. The Committee notes that, in its report published in April 2023 (report No. 279), the Law Commission of India recommended to retain section 124-A of the Penal Code while introducing certain amendments. In that regard, the Committee takes note of the Bharatiya Nyaya Sanhita Bill, 2023 introduced to the Lok Sabha in August 2023 (lower house of Parliament), with the aim to repeal and replace the existing Penal Code. It notes more particularly that section 150 of the Bill criminalizes “acts endangering the sovereignty, unity and integrity of India” and establishes penalties of imprisonment for life or imprisonment and a fine. The Bill also introduces a new offence regarding “terrorist acts” (section 111 of the Bill).

In this regard, the Committee notes that several United Nations experts have repeatedly highlighted grave concerns regarding the Unlawful Activities (Prevention) Act, 1967, which is applied as a means of coercion against civil society, the media, and human rights defenders in Jammu and Kashmir states. The Committee further notes that, in the context of the Universal Periodic Review, similar concerns were expressed by the High Commissioner for Human Rights who urged the Government to release people who had been charged under the Unlawful Activities (Prevention) Act for simply exercising basic human rights (A/HRC/WG.6/41/IND/2, 19 August 2022).

The Committee requests the Government to take the necessary measures, including in the context of the ongoing legislative process for the revision of the Penal Code, to ensure 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 sections 124-A, 295-A and 298 of the Penal Code and of the Unlawful Activities (Prevention) Act, 1967 to situations connected with the use of violence or incitement to violence, or by repealing sanctions involving compulsory labour. The Committee again requests the Government 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 raising other matters in a request addressed directly to the Government.

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

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.

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

Article 1(d) of the Convention. Sanctions for participating in strikes. In its previous comments, the Committee noted the following provisions prohibiting strikes in essential services, enforceable with sanctions of imprisonment, which may involve compulsory labour:

• -sections 3 and 5 of the Essential Services Maintenance Act, 1981; and
• -sections 3 and 4 of the Kerala Essential Services Maintenance Act, 1994.

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). Noting the Government’s indication that after consultations with the state governments and the central ministries/departments, it was decided not to extend the validity of the Essential Services Maintenance Act (1981) which lapsed in September 1990, the Committee requested the Government to communicate a copy of the decision taken to that effect.

The Committee notes that the Government does not provide information on the above issue. As regards the Kerala Essential Services Maintenance Act (KESMA), 1994, referred to above, the Committee takes note of the report from the State of Kerala, as well as of the judgment handed down by the High Court of Kerala on 17 July 2002 which struck down section 6 of the KESMA for being unconstitutional, both forwarded by the Government. The Committee notes that section 2(1) of the Act 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. The Committee further notes that section 3 of the Act empowers the state government, by general or special order, to prohibit strikes in any essential service specified in the order. Participation and instigation to participate in such strikes considered as illegal is punished by sanctions of imprisonment for up to six months, which may involve compulsory labour, and/or a fine (sections 4 and 5 of the KESMA).

The Committee observes that the provisions of the KESMA are worded in broad terms and penalize with sanctions involving compulsory labour the peaceful participation in strikes. The Committee recalls 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 General Survey of 2012 on the fundamental Conventions, paragraph 315). The Committee therefore expresses the firm hope that the Government will 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 state governments’ orders prohibiting strikes, as well as of relevant court decisions, specifying the penalties applied. The Committee again requests the Government to provide a copy of the decision taken not to extend the validity the Essential Services Maintenance Act (1981) after September 1990.

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

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.

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

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.

Direct Request (CEACR) - adopted 2011, published 101st ILC session (2012)

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. The Committee previously noted the following provisions of the Penal Code, under which penalties of imprisonment (which may involve compulsory prison labour, 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).

In its report, the Government reiterates its previous statement that some of the above provisions (sections 124A, 153A, 153B) refer only to imprisonment as such, and only two of them (sections 295A and 298) provide explicitly for the imposition of punishment of either simple or rigorous imprisonment. The Committee previously noted, however, that in both cases the court retains discretion under section 53 of the Penal Code to impose a sentence of rigorous imprisonment, and thereby a punishment involving compulsory labour.

The Committee recalls, referring also to paragraph 154 of its 2007 General Survey on the eradication of forced labour, 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.

Noting also the Government’s indication that, according to reports from State Governments, no cases pertaining to sections 295A and 298 have been registered and that the offences in the above sections are very rare, the Committee requests the Government to provide information on the application of all the abovementioned penal provisions in practice, including copies of any court decisions defining or illustrating their scope, as soon as such information becomes available. The Committee again requests a copy of the Newspapers Incitements to Offences Act (in effect in Jammu and Kashmir), so that the Committee may examine its conformity with the Convention.

The Committee previously noted that under section 3 of The Official Secrets Act, 1923 (OSA), any person who publishes or communicates to any other person any article or information for any purpose prejudicial to the interests of the State may be punished with a sentence of imprisonment that involves compulsory labour in accordance with section 53 of the Penal Code. The Committee observes, referring also to the explanations in paragraph 159 of its 2007 General Survey referred to above, that this provision is worded in terms broad enough to be susceptible to application as a means of punishment for the expression of political views or views ideologically opposed to the established system.

Noting that the Government’s report contains no information on this issue, the Committee reiterates its hope that the Government will provide information concerning the application of the above provision of The Official Secrets Act in practice, including copies of any relevant court judgments and indicating the penalties imposed, as well as information on measures taken or envisaged to ensure conformity with the Convention on this point.

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 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 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 also refers in this connection to paragraph 189 of its 2007 General Survey referred to above, where it 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.

Noting that the Government’s report contains no information on this issue, the Committee hopes that the necessary measures will be taken to amend or repeal the above provisions of the Essential Services Maintenance Act, 1981, and the Kerala Essential Services Maintenance Act, 1994, so as to ensure that no sanctions involving compulsory labour can be imposed for the mere fact of a peaceful participation in strikes. Pending the adoption of such measures, the Committee once again requests the Government to provide information on the application of the above provisions in practice, including copies of any relevant court decisions and indicating the penalties imposed.

Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes the information provided by the Government in its report, including copies of the legislation annexed thereto, such as Chapter XXXII of the Criminal Procedure Code, the Official Secrets Act 1923, the Merchant Shipping Act 1958, as amended by The Merchant Shipping (Amendment) Act 2002, and extracts from the Press Law and Repeal and Amendment Act 1922.

Article 1, subparagraph a, of the Convention. Sanctions involving compulsory labour as a means to punish the expression of political views or views ideologically opposed to the established system. In its earlier comments, the Committee referred to provisions of the Indian Penal Code, under which penalties of imprisonment (which may involve compulsory prison labour, 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, including:

–      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 notes the Government’s statement in its report that several of those provisions (sections 124A, 153A, 153B) refer only to imprisonment as such and that only two (sections 295A and 298) provide explicitly for the imposition of punishment of either simple or rigorous imprisonment. The Committee notes, however, that in both cases the court retains discretion under section 53 of the Penal Code to impose a sentence of rigorous imprisonment, and thereby a punishment involving compulsory labour. The Committee recalls that the Convention prohibits the use of sanctions involving compulsory labour 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. The Committee notes the Government’s indications that it is currently ascertaining from State governments and State courts the actual practice being followed in the pronouncement of sentences in cases involving offenses of this nature.

The Committee hopes that the Government will soon be in a position to communicate information on the application of the above penal provisions in practice, including copies of any court decisions defining or illustrating their scope. The Committee again requests a copy of the Newspapers Incitements to Offences Act (in effect in Jammu and Kashmir), so that the Committee may examine its conformity with the Convention.

The Committee notes that under section 3 of The Official Secrets Act, 1923 (OSA), any person who publishes or communicates to any other person any article or information for any purpose prejudicial to the interests of the State may be punished with a sentence of imprisonment that involves compulsory labour in accordance with section 53 of the Penal Code. The Committee observes, referring also the explanation in paragraph 159 of its 2007 General Survey on the eradication of forced labour, that this provision is worded in terms broad enough to be susceptible to application as a means of punishment for the expression of political views or views ideologically opposed to the established system, and that insofar as it is enforceable with sanctions involving compulsory labour, it falls within the scope of the Convention (paragraph 159).

The Committee hopes that the Government will provide information concerning the application and enforcement of the above provision of The Official Secrets Act in practice, including copies of any relevant court judgments and indicating the penalties imposed, as well as information on measures taken or envisaged to ensure conformity with the Convention on this point.

Article 1, subparagraph d, of the Convention. Sanctions for participating in strikes. The Committee in its previous comments noted the following provisions which prohibit strikes in essential services and provide for enforcement of such prohibitions with sanctions of imprisonment which, under section 53 of the Penal Code, may involve compulsory prison labour: 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 noted that the prohibitions 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 definition of essential services contained in section 2 of the 1981 Act includes a range of services the interruption of which would not necessarily endanger the life, personal safety or health of the population (such as postal services, railway or transport service generally, aircraft repairs, petroleum sector and ports (loading and unloading), banking and the Mint, etc.). The Committee noted that the Government referred to official notifications dated 27 September 1993, which specified a list of services declared essential under the Kerala Act of 1994, including services in connection with food and civil supplies and the distribution of ration items; the transport of goods and of bus passengers; and water transport services, all of which are beyond the scope of essential services in the strict sense of the term. Further, the Kerala Act of 1994 gives the Government wide discretionary powers to declare any service under the Government to be essential for purposes of the Act, or that strikes therein would prejudicially affect the maintenance of any public utility service or would result in the infliction of grave hardship on the community (section 2(a)).

The Committee referred in this connection to paragraph 185 of its General Survey of 2007 on the eradication of forced labour, in which it pointed out that penalties (involving compulsory labour) for participation in strikes in the civil service or other essential services may be applied only to essential services in the strict sense of the term, as explained above. The Committee therefore requested the Government to re-examine the above provisions with a view to bringing the legislation into conformity with the Convention.

Noting that the Government’s report contains no new information on this issue, the Committee reiterates its hope that the Government will take measures to amend or repeal the provisions of the Essential Services Maintenance Act, 1981, and the Kerala Essential Services Maintenance Act, 1994, noted above, so as to bring its law into conformity with the Convention on this point. Pending the adoption of such measures, the Committee once again requests the Government to provide information on the application of the above provisions in practice, including copies of any relevant court decisions and indicating the penalties imposed. The Committee once again asks the Government to provide copies of notifications Nos 55099-IV/SSA4/93/Home and 55099‑V/SSA4/93/Home, dated 27 September 1993, as well as the 2002 judgment of the Kerala High Court construing the Kerala Act, to which it has previously referred.

Direct Request (CEACR) - adopted 2007, published 97th ILC session (2008)

Supply of legislation

1. The Committee notes the information provided by the Government in its 2007 the report. It notes, in particular, the Government’s explanations concerning section 60 of the Indian Penal Code (IPC). The Committee understands that, under that section, it is in the court’s discretion, in cases involving offences punishable to either wholly rigorous or wholly simple imprisonment, whether to sentence an offender to rigorous imprisonment, such that he or she would be subject to compulsory labour. Please supply a copy of Chapter XXXII of the Criminal Code of Procedure to which reference has been made in the report.

2. The Committee notes that copies of legislation which the Government indicated were enclosed with its report have not been received in the ILO; the Government is asked to supply them with its next report. The Committee again requests the Government to communicate, with its next report, copies of the legislation in force governing assemblies, meetings and demonstrations, political parties and associations; a copy of the Press Law and Repeal and Amendment Act 1922, a copy of the Public Servants Act, as well as a copy of an updated text of the Merchant Shipping Act and any other provisions governing labour discipline in merchant shipping.

3. Article 1(a) of the Convention. Sanctions involving compulsory labour as a means to punish the expression of political views or views ideologically opposed to the established system. In its earlier comments, the Committee referred to the following Penal Code provisions, under which penalties of imprisonment (which may involve compulsory prison labour, 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:

(i)    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);

(ii)    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);

(iii)   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);

(iv)   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).

4. The Committee recalls that the Convention prohibits the use of sanctions involving an obligation to work as a means of political coercion or education or as a punishment for the peaceful expression of non-violent political views or views ideologically opposed to the established political system. Since the Government’s report contains no information on these issues, the Committee again requests the Government to provide information on their application in practice, including any court decisions defining or illustrating their scope, in order to enable the Committee to ascertain that the above provisions are applied in a manner compatible with the Convention. Please also communicate copies of the Official Secrets Act and the Newspapers Incitements to Offences Act (which, according to the Committee’s knowledge, remains in effect in Jammu and Kashmir), so that the Committee could examine their conformity with the Convention.

5. Article 1(d). Sanctions for participating in strikes. The Committee previously noted the provisions prohibiting strikes in essential services enforceable with sanctions of imprisonment (which may involve compulsory prison labour) (sections 3 and 5 of the Essential Services Maintenance Act 1981; sections 3 and 4 of the Kerala Essential Services Maintenance Act 1994). The Committee refers in this connection to paragraph 185 of its General Survey of 2007 on the eradication of forced labour, in which it pointed out that penalties (involving compulsory labour) for participation in strikes in the civil service or other essential services may be applied only to 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 – and if compensatory guarantees in the form of appropriate alternative procedures are provided.

6. However, the prohibition laid down in the above legislative provisions goes well beyond the concept of essential services in the strict sense of the term. The definition of essential services contained in section 2 of the 1981 Act covers a much wider range of services, including some whose interruption would not necessarily endanger the life, personal safety or health of the population (such as postal services, railway or transport service generally, aircraft repairs, petroleum sector and ports (loading and unloading), banking and the Mint, etc.). The Committee notes that, in its latest report, the Government, referring to notifications Nos 55099-IV/SSA4/93/Home and 55099-V/SSA4/93/Home dated 27 September 1993, specified a list of services declared essential under the Kerala Act of 1994. These included services in connection with food and civil supplies and the distribution of ration items; the transport of goods and of bus passengers; and water transport services, all of which extend beyond essential services in the strict sense of the term. Further, the Kerala Act of 1994 gives the Government wide discretionary powers to declare any service under the Government to be essential for the purposes of the Act, or if 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 on the community (section 2(a)).

7. The Committee reiterates its hope that, in the light of the above considerations, the Government will re-examine the above provisions with a view to the adoption of appropriate measures to ensure the observance of the Convention on this point. Pending the adoption of such measures, the Government is requested to provide information on the application of the above provisions in practice, including copies of any relevant court decisions and indicating the penalties imposed. Please also provide copies of notifications Nos 55099-IV/SSA4/93/Home and 55099-V/SSA4/93/Home, dated 27 September 1993, as well as the 2002 judgement of the Kerala High Court construing the Kerala Act, to which the Government has referred.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the following matters raised in its previous direct request:

The Committee would be grateful if the Government would supply, with its next report, copies of the legislation in force governing the press and assemblies, meetings and demonstrations, political parties and associations; a copy of the Public Servants Act, as well as a copy of an updated text of the Merchant Shipping Act and any other provisions governing labour discipline in merchant shipping. The Committee also requests the Government to provide, in its next report, additional information on the following points.

Article 1(a) of the Convention. The Committee has noted the following Penal Code provisions, under which penalties of imprisonment (which involves compulsory prison labour, if an offender is sentenced to rigorous imprisonment at the discretion of the court exercised under section 60 of the Penal Code) may be imposed in circumstances falling within the scope of the Convention:

(i)     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);

(ii)    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);

(iii)   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);

(iv)   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 Convention prohibits the use of sanctions involving an obligation to work as a means of political coercion or education or as a punishment for the peaceful expression of non-violent political views or views ideologically opposed to the established political system. In order to enable the Committee to ascertain that the above provisions are applied in a manner compatible with the Convention, the Committee would appreciate it if the Government would supply information on their application in practice, including any court decisions defining or illustrating their scope.

Please also communicate copies of the Official Secrets Act and the Newspapers Incitements to Offences Act (which, according to the Committee’s knowledge, remains in effect in Jammu and Kashmir), so as the Committee could examine their conformity with the Convention.

Article 1(d). The Committee has noted the provisions prohibiting strikes in essential services enforceable with sanctions of imprisonment (which may involve compulsory prison labour) (sections 3 and 5 of the Essential Services Maintenance Act, 1981; sections 3 and 4 of the Kerala Essential Services Maintenance Act, 1994). The Committee refers in this connection to paragraph 123 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that the imposition of penalties (even involving compulsory labour) for participation in strikes in essential services is not incompatible with the Convention, provided it is confined to essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), and provided that appropriate alternative dispute settlement procedures are available. However, the prohibition laid down in the above legislative provisions goes well beyond the concept of essential services in the strict sense of the term. The definition of essential services contained in section 2 of the 1981 Act covers a much wider range of services, including some whose interruption would not necessarily endanger the life, personal safety or health of the population (such as postal services, railway or transport service generally, aircraft repairs, petroleum sector and ports (loading and unloading), banking and the Mint, etc.). Further, the Kerala Act of 1994, though it does not contain a list of essential services, gives the Government wide discretionary powers to declare any service under the Government to be essential for the purposes of the Act, or if 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 on the community (section 2(a)).

The Committee hopes that, in the light of the above considerations, the Government will re-examine the above provisions with a view to the adoption of appropriate measures to ensure the observance of the Convention on this point. Pending the adoption of such measures, the Government is requested to provide information on the application of the above provisions in practice, including copies of any relevant court decisions and indicating the penalties imposed. Please also supply copies of any other texts concerning maintenance of essential services adopted at the state level.

Direct Request (CEACR) - adopted 2005, published 95th ILC session (2006)

The Committee notes the Government’s indication in its report that the information requested by the Committee is being collected and will be sent separately. Since the Government’s report contains no further information in reply to previous comments, the Committee hopes that the next report will include full information on the following matters raised in its previous direct request:

The Committee would be grateful if the Government would supply, with its next report, copies of the legislation in force governing the press and assemblies, meetings and demonstrations, political parties and associations; a copy of the Public Servants Act, as well as a copy of an updated text of the Merchant Shipping Act and any other provisions governing labour discipline in merchant shipping. The Committee also requests the Government to provide, in its next report, additional information on the following points.

Article 1(a) of the Convention. The Committee has noted the following Penal Code provisions, under which penalties of imprisonment (which involves compulsory prison labour, if an offender is sentenced to rigorous imprisonment at the discretion of the court exercised under section 60 of the Penal Code) may be imposed in circumstances falling within the scope of the Convention:

(i)  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);

(ii)  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);

(iii)  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);

(iv)  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 Convention prohibits the use of sanctions involving an obligation to work as a means of political coercion or education or as a punishment for the peaceful expression of non-violent political views or views ideologically opposed to the established political system. In order to enable the Committee to ascertain that the above provisions are applied in a manner compatible with the Convention, the Committee would appreciate it if the Government would supply information on their application in practice, including any court decisions defining or illustrating their scope.

Please also communicate copies of the Official Secrets Act and the Newspapers Incitements to Offences Act (which, according to the Committee’s knowledge, remains in effect in Jammu and Kashmir), so as the Committee could examine their conformity with the Convention.

Article 1(d). The Committee has noted the provisions prohibiting strikes in essential services enforceable with sanctions of imprisonment (which may involve compulsory prison labour) (sections 3 and 5 of the Essential Services Maintenance Act, 1981; sections 3 and 4 of the Kerala Essential Services Maintenance Act, 1994). The Committee refers in this connection to paragraph 123 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that the imposition of penalties (even involving compulsory labour) for participation in strikes in essential services is not incompatible with the Convention, provided it is confined to essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), and provided that appropriate alternative dispute settlement procedures are available. However, the prohibition laid down in the above legislative provisions goes well beyond the concept of essential services in the strict sense of the term. The definition of essential services contained in section 2 of the 1981 Act covers a much wider range of services, including some whose interruption would not necessarily endanger the life, personal safety or health of the population (such as postal services, railway or transport service generally, aircraft repairs, petroleum sector and ports (loading and unloading), banking and the Mint, etc.). Further, the Kerala Act of 1994, though it does not contain a list of essential services, gives the Government wide discretionary powers to declare any service under the Government to be essential for the purposes of the Act, or if 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 on the community (section 2(a)).

The Committee hopes that, in the light of the above considerations, the Government will re-examine the above provisions with a view to the adoption of appropriate measures to ensure the observance of the Convention on this point. Pending the adoption of such measures, the Government is requested to provide information on the application of the above provisions in practice, including copies of any relevant court decisions and indicating the penalties imposed. Please also supply copies of any other texts concerning maintenance of essential services adopted at the state level.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes that the Government’s report contains no reply to previous comments. It hopes that the next report will include full information on the following matters raised in its previous direct request.

The Committee would be grateful if the Government would supply, with its next report, copies of the legislation in force governing the press and assemblies, meetings and demonstrations, political parties and associations; a copy of the Public Servants Act, as well as a copy of an updated text of the Merchant Shipping Act and any other provisions governing labour discipline in merchant shipping. The Committee also requests the Government to provide, in its next report, additional information on the following points.

Article 1(a) of the Convention. The Committee has noted the following Penal Code provisions, under which penalties of imprisonment (which involves compulsory prison labour, if an offender is sentenced to rigorous imprisonment at the discretion of the court exercised under section 60 of the Penal Code) may be imposed in circumstances falling within the scope of the Convention:

(i)  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);

(ii)  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);

(iii)  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);

(iv)  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 Convention prohibits the use of sanctions involving an obligation to work as a means of political coercion or education or as a punishment for the peaceful expression of non-violent political views or views ideologically opposed to the established political system. In order to enable the Committee to ascertain that the above provisions are applied in a manner compatible with the Convention, the Committee would appreciate it if the Government would supply information on their application in practice, including any court decisions defining or illustrating their scope.

Please also communicate copies of the Official Secrets Act and the Newspapers Incitements to Offences Act (which, according to the Committee’s knowledge, remains in effect in Jammu and Kashmir), so as the Committee could examine their conformity with the Convention.

Article 1(d). The Committee has noted the provisions prohibiting strikes in essential services enforceable with sanctions of imprisonment (which may involve compulsory prison labour) (sections 3 and 5 of the Essential Services Maintenance Act, 1981; sections 3 and 4 of the Kerala Essential Services Maintenance Act, 1994). The Committee refers in this connection to paragraph 123 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that the imposition of penalties (even involving compulsory labour) for participation in strikes in essential services is not incompatible with the Convention, provided it is confined to essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), and provided that appropriate alternative dispute settlement procedures are available. However, the prohibition laid down in the above legislative provisions goes well beyond the concept of essential services in the strict sense of the term. The definition of essential services contained in section 2 of the 1981 Act covers a much wider range of services, including some whose interruption would not necessarily endanger the life, personal safety or health of the population (such as postal services, railway or transport service generally, aircraft repairs, petroleum sector and ports (loading and unloading), banking and the Mint, etc.). Further, the Kerala Act of 1994, though it does not contain a list of essential services, gives the Government wide discretionary powers to declare any service under the Government to be essential for the purposes of the Act, or if 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 on the community (section 2(a)).

The Committee hopes that, in the light of the above considerations, the Government will re-examine the above provisions with a view to the adoption of appropriate measures to ensure the observance of the Convention on this point. Pending the adoption of such measures, the Government is requested to provide information on the application of the above provisions in practice, including copies of any relevant court decisions and indicating the penalties imposed. Please also supply copies of any other texts concerning maintenance of essential services adopted at the state level.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

The Committee has noted with interest the information provided by the Government in its first report on the application of the Convention. It would be grateful if the Government would supply, with its next report, copies of the legislation in force governing the press and assemblies, meetings and demonstrations, political parties and associations; a copy of the Public Servants Act, as well as a copy of an updated text of the Merchant Shipping Act and any other provisions governing labour discipline in merchant shipping. The Committee also requests the Government to provide, in its next report, additional information on the following points.

Article 1(a) of the Convention. The Committee has noted the following Penal Code provisions, under which penalties of imprisonment (which involves compulsory prison labour, if an offender is sentenced to rigorous imprisonment at the discretion of the court exercised under section 60 of the Penal Code) may be imposed in circumstances falling within the scope of the Convention:

(i)  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);

(ii)  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);

(iii)  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);

(iv)  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 Convention prohibits the use of sanctions involving an obligation to work as a means of political coercion or education or as a punishment for the peaceful expression of non-violent political views or views ideologically opposed to the established political system. In order to enable the Committee to ascertain that the above provisions are applied in a manner compatible with the Convention, the Committee would appreciate it if the Government would supply information on their application in practice, including any court decisions defining or illustrating their scope.

Please also communicate copies of the Official Secrets Act and the Newspapers Incitements to Offences Act (which, according to the Committee’s knowledge, remains in effect in Jammu and Kashmir), so as the Committee could examine their conformity with the Convention.

Article 1(d). The Committee has noted the provisions prohibiting strikes in essential services enforceable with sanctions of imprisonment (which may involve compulsory prison labour) (sections 3 and 5 of the Essential Services Maintenance Act, 1981; sections 3 and 4 of the Kerala Essential Services Maintenance Act, 1994). The Committee refers in this connection to paragraph 123 of its General Survey of 1979 on the abolition of forced labour, in which it pointed out that the imposition of penalties (even involving compulsory labour) for participation in strikes in essential services is not incompatible with the Convention, provided it is confined to essential services in the strict sense of the term (that is, services whose interruption would endanger the life, personal safety or health of the whole or part of the population), and provided that appropriate alternative dispute settlement procedures are available. However, the prohibition laid down in the above legislative provisions goes well beyond the concept of essential services in the strict sense of the term. The definition of essential services contained in section 2 of the 1981 Act covers a much wider range of services, including some whose interruption would not necessarily endanger the life, personal safety or health of the population (such as postal services, railway or transport service generally, aircraft repairs, petroleum sector and ports (loading and unloading), banking and the Mint, etc.). Further, the Kerala Act of 1994, though it does not contain a list of essential services, gives the Government wide discretionary powers to declare any service under the Government to be essential for the purposes of the Act, or if 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 on the community (section 2(a)).

The Committee hopes that, in the light of the above considerations, the Government will re-examine the above provisions with a view to the adoption of appropriate measures to ensure the observance of the Convention on this point. Pending the adoption of such measures, the Government is requested to provide information on the application of the above provisions in practice, including copies of any relevant court decisions and indicating the penalties imposed. Please also supply copies of any other texts concerning maintenance of essential services adopted at the state level.