Demande directe (CEACR) - adoptée 2007, publiée 97ème session CIT (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.