Analysing ‘Forced Labour’ Jurisprudence in light of the Pandemic

By: Chytanya S. Agarwal


The COVID-19 pandemic was inter alia, marked by nationwide lockdowns, a financial crunch, the mass exodus of migrant workers, and relaxation of labour laws by many states. This leads to the issue of potentially conflicting rights. In this article, I deal with issues concerning such conflicting constitutional rights during the pandemic and apply the concepts to the case of workers being offered an inapt choice between on-site work with the risk of contracting COVID and job loss; and the balancing of right to free trade and the right to against forced labour.

Firstly, I delineate the scope of Article 23 by drawing on the constituent assembly debates and judicial precedents to ascertain the scope of the expression “other similar forms of forced labour” in Article 23(1). Secondly, I analyse situations involving a potential conflict of rights with Article 23(1) in the case of workers being compelled to render services. While the matter came before the Supreme Court, it did not delve into the issue of conflicting rights nor further delineate the constitutional rights available to workers during the pandemic. Lastly, I highlight the limitations of transformative jurisprudence under Article 23.


Article 23 is similar to the 13th Amendment to the US Constitution, which discontinued the practice of “slavery or involuntary servitude.” Clause (2) of the Article contains a non-obstante clause that allows an exception regarding State-directed “compulsory service for public purposes.” A similar exception to the 13th Amendment was also upheld by the US Supreme Court in Robertson v. Baldwin. The constituent assembly debates show that though the framers’ intent was primarily directed at abolishing the historical and slavery-like institution of begar, the larger consensus stood for the understanding that the expression ‘forced labour’ should be widely construed not just in terms of physical coercion but also as including any form of ‘extortion’ of one’s physical labour against one’s free will (see Raj Bahadur’s speech). According to KT Shah, even legally enforceable contractual labour should obey certain norms of “civilised humanity” – indicating that even legal force can be covered by an expansive interpretation of “forced labour.” The Constitution, thus, used “forced labour” in a sense wider than its definition under the ILO’s Forced Labour Convention, 1930, which restricted it to involuntary labour rendered “under the menace of punishment” (Article 2(1)).

Article 23(1) has been given statutory force under Section 374 (IPC), which makes unlawfully coercing a person to labour against their will a punishable offence. Soon after the adoption of the Constitution, the scope of ‘forced labour’ was discussed in Dubar Goala v. Union of India, wherein it held that the writ of mandamus cannot be invoked to enforce or nullify a contractual obligation. The Court ruled that the very presence of “an agreement negates the suggestion of forced labour” and threat or duress was absent since the contract was voluntarily entered into in the first place. Thus, the standard in Dubar Goala interpreted ‘force’ narrowly and limited it to actual ‘duress’.

Subsequently, PUDR v. Union of India ruled that there exists direct horizontality under Article 23. Thus, this right is enforceable even against any private citizen. Following the verdict in Maneka Gandhi that the interpretation of Fundamental Rights should be to widen and not to circumscribe their ambit, it held that “any factor that deprives a person of a choice of alternatives” and compels such person to undertake one particular course of action should be construed as ‘force’ (PUDR, ¶14). Accordingly, the Court read legal force, economic compulsion, and Hobson’s choice into the expression ‘forced labour’. In Bandhua Mukti Morcha v. Union of India (¶34), Bhagwati J, while discussing the question of burden of proof, ruled that once it is brought to the Court’s notice that a person is being coerced into doing forced labour, the Court would be under a ‘presumption’ that he is being compelled to do so in consideration of an advance and would therefore be a bonded labourer entitled to protection under the Bonded Labour System (Abolition) Act, 1976.

Furthermore, the Court, in PUDR, was of the opinion that when a person renders service or labour for a consideration less than the minimum wage, the same shall be considered to be forced labour. The same was later affirmed in Sanjit Roy v. State of Rajasthan where Bhagwati, J. opined that famine relief work indirectly benefits the State by augmenting its wealth. Thus, the workers employed in such works were entitled to the statutory minimum wages, even if their labour was needed for a social purpose. In State of Gujarat v. Hon’ble High Court of Gujarat the Court upheld the constitutionality of hard labour under rigorous imprisonment, provided that ‘equitable’ wages were given as remuneration.


Gautam Bhatia extends the reasoning in PUDR to the context of the early months of the COVID pandemic to argue that an employer can practically deprive the workers of a genuine choice in those conditions. He equates the unconscionable choice of ‘working for below minimum wages or no work’ (the PUDR situation) with the illusory choice of ‘exposing oneself to the contagion by working and going against medical guidelines or loss of livelihood’ (the COVID situation) – both are in the nature of Hobson’s choice. In such a situation, Bhatia notes that there exists a justiciable right to work from home when physical presence is not necessary for work. However, when physical presence is necessitated by the nature of the work, for Bhatia, absolute enforcement of Article 23 will deprive the employer of his right to free trade under Article 19(1)(g). In such a situation, when the rights clash with each other, he argues that they must be harmonised through the application of the principle of proportionality. Per Bhatia, instituting precautionary and safety measures are the only measures that ensure this balance. These measures also have statutory backing under Section 6(1)(d) of the Occupational Safety, Health and Working Conditions Code, 2020, which makes it every employer’s duty to ensure a secure working environment for the workers without prejudice to their health. Under Article 39(e), the State is obligated to direct its policy toward protecting the health and strength of workers; Article 42 provides for just conditions of work.

However, I differ from Bhatia’s understanding. He ignores that while Article 19(1)(g) is subject to reasonable restrictions in the interests of the general public, Article 23(1) does not have any exception other than the limited proviso in 23(2). Thus, the courts can, in no situation, seek to enforce Article 23(1) partially. It shall be enforced only absolutely. This line of argument is supported by the jurist Aharon Barak (p.89-90), who notes that principles of proportionality must be located “within the limitation clause.” Because Article 23(1) contains no limitation clause other than Article 23(2), it cannot be curtailed by Article 19(1)(g). The correct approach is that Article 19(1)(g) can be counterbalanced by Article 23(1) and not the other way round if the prohibition of forced labour is located within “interests of the general public.” This is because Article 19(1)(g), unlike Article 23(1), can be restricted reasonably.

A similar issue arose in Gujarat Mazdoor Sabha v. The State of Gujarat that dealt with notifications by state governments under the Factories Act relaxing certain provisions such as the upper limit of working hours, overtime wages, intervals for rest, etc. The impugned notifications were deemed violative of Article 23 on several grounds, including the breach of the minimum wages rule of Sanjit Roy by halving overtime wages (which was deemed to be the ‘minimum wages for extra work’) to normal wages. The notifications also defeated the very purpose of the said Act, which was to guarantee better working conditions and maintain the overall well-being of the workers. Interestingly, the court referred to the proportionality test of KS Puttuswamy but did not apply the said test to the facts apart from opining that a blanket notification for all factories was a disproportionate measure. This was a missed opportunity as the court, by applying the proportionality test, could have delineated the contours of the rights involved, namely, those of the employer and the employees. Similarly, in In Re: Problems and Miseries of Migrant Labourers, the Supreme Court could have detailed the precise constitutional rights of the migrant workers even as it issued directions for their relief under several labour laws.


The expansive interpretation of Article 23(1) in PUDR provides scope for reckoning with forms of forced labour that were not traditionally foreseen to be covered under the provision. However, there are several deficiencies in the current constitutional jurisprudence with regard to forced labour. Firstly, there has been a lack of judicial innovation regarding the scope of ‘forced labour’ since the PUDR judgement was rendered, leading to uncertainty regarding its application to emerging forms of work like the  gig economy. Secondly, while formulating policy-related directives for the relief of migrant workers, the court did not explain the underlying constitutional rights that entitle the workers to claim such benefits, making such relief discretionary, even though the courts have ruled that such beneficial action is in line with the constitutional vision. Clarity on this “constitutional vision” by enumerating rights thereunder would go a long way in making them justiciable in future. Lastly, as shown by Gujarat Mazdoor Sabha, courts have invoked but not applied the proportionality approach in case Article 23(1) comes in clash with any right, leading to uncertainty. Judicial clarifications in this regard would be helpful in negating the ambiguities and help in better enforcement of the rights made glaringly manifest by the pandemic.

(Chytanya is a law undergraduate at National Law School of India University, Bengaluru. The author may be contacted via email at

Cite as: Chytanya S. Agarwal, ‘Analysing ‘Forced Labour’ Jurisprudence in light of the Pandemic’ (The RMLNLU Law Review Blog, 27 February 2023) <>date of access.

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