Slavery Law: AS EVOLVED & OBLIGATION OF MULTINATIONAL ENTITIES
The term 'Modern Slavery' refers to
any situations or condition of exploitation, where a person is mandated to not
to refuse or leave work because of alleged threats, violence, coercion, deception
or abuse of power. In Australia, the concept of modern slavery also incorporate
conduct that may constitute an offence. This emanates from existing human
trafficking, slavery and slavery-like offence provisions whereof, are set out
in Divisions 270 and 271 of the Commonwealth Criminal Code. Modern
Slavery in broad sense of term, encompasses , servitude, the child labour,
forced labour, human trafficking, debt bondage, forced marriage. This also
encompass in its trap deceptive recruiting of labour or services.
The prevalence of slavery
has been an age old phenomena across the globe and efforts were unveiled
periodically to set right the ills, sometime with marginal and sometime with
partial success. The importance of the issue cannot be overstated, though. In
USA, for instance, in 1865, The Thirteenth (13th) amendment was
ratified thereby putting an end to slavery. The Fourteenth (14th )
amendment in 1868 has further strengthened it by according rights to slaves,
who were free. The Fifteen (15) Amendment in 1870, was of utmost importance, in
as much as, right to vote was accorded to everyone irrespective of race, caste,
creed, religion etc.
LAW IN INDIA
In India, if it is
seen from the perspective of Constitution, them Article 23 and 24 of Indian
Constitution, guarantees people of human dignity and rights against
exploitation. The Article 23 (1) prohibits human trafficking including forced.The
Right to Life and Perosnal Liberty as part of Article 21 is a significant right
available even to a non citizen. The provision over the years has been
interpreted in such a manner so as to include “life with dignity” being important
component of right to life and liberty.
The forced labour,
and in some cases child labour, remained an issue of substantial concern. There
can be no quarrel, as regards children, deserving to grow in congenial milieu and bereft of any
imposing circumstances. The article 21 of Constitution of India, in any case,
contains the principles of right to life and personal liberty to all. If taken
together, with Article 23-24 of Indian Constitution, no one can be deprived of
right to freedom, and everyone has right not to be exploited. A child being
prone, special protection is required as their physical and mental health
cannot be subjugated to deprive him better opportunity to grow. The Article 39
of Constitution of India, which is the part of Directive Principles of State
Policy, expects state, to ensure that a child cannot be abused and further,
cannot be put to forced labour, due to economic necessity. The Article 24
ordains that no children below the age of 14 years shall be employed in Factory
or hazardous industry.
In retrospect, in India,
there were instances of African imported in the Indian colonies in Konkan
region by Portuguese. The time period was about 1530 to 1740. It is a matter of
record that Slavery was abolished during East India Company rule and The Indian
Slavery Act, 1843 was enacted and that had outlawed many economic transactions associated with
slavery.
Thus, what could be assumed is that since
the dawn of civilization , the inequality in system remained ingrained in some
forms, but, the progress towards vibrant democracy has gradually shaped rule of
law. The inequality and fall out of that including slavery, as a natural
process was sought to be negated through constitutional mans. In essence,
though, and in practice, the traces of the element of slavery subsisted, though,
undoubtedly, it is substantially diminished. No welfare state can promote and
perpetuate slavery. When India won freedom, the constitution of India has
included in essence the principles of justice, equality and good conscience.
The French Revolution of 1789 was a motivating factor in this context. The
Indian constitution has picked up some provisions from various countries to
make it dynamic and forward looking. Before going further, it may be worthwhile
to refer to some basic concept, that India has incorporated from the
constitution of some countries. It was so, as the founding father of Indian
Constitution Dr B.R Ambedkar had opined that, there is no reason to be
apologetic from including some good feature that existed before in some
countries in Indian Constitution. The following may therefore, reflect on it:
|
S.N |
COUNTRY OF ORIGIN |
PARTICULARS INCLUDED IN INDIAN
CONSTITUTION |
|
1. |
USA |
Fundamental Rights and Judicial Review |
|
2. |
Britain |
parliamentary form of governance , single citizenship, Rule of
Law , Writs |
|
3. |
Ireland |
Directive Principles of State Policy |
|
4. |
Canada |
Provision of federalism with strong centre |
|
5. |
Australia |
Freedom of trade and commerce and concurrent list |
|
6. |
France |
Idea of preamble-Justice, equality and fraternity |
|
7. |
South Africa |
Procedure of amendment |
|
8. |
Germany |
Emergency provisions and , Suspension of fundamental rights
during emergency |
|
9. |
USSR, |
Fundamental duties & institution mandated
planning commission |
|
10. |
Japan |
Procedure established by law and Supreme Court |
Case Laws in India
The right to every
citizen and children being sacrosanct as per Indian Constitution, the objective
of the constitution is well thought about and is set out clearly, however,
aberrations are reported and therefore, if the matter has reached courts of
law, the Courts in general, and hon’ble Supreme Court, in particular has consistently
upheld civic liberty and equality. Some of the judgments worth-mentioning , in
this regard are as under:
|
S.N |
Case CAPTION |
remark |
|
1. |
People Union for
democratic Rights vs Union of India AIR 1982 SC 1943 |
The case related to the labour issues during ASIAD Games in
New Delhi and as regards non-payment of minimum wages as per Minimum Wages
Act 1948 and unequal payment to men and women labourers. The Supreme Court
has upheld the petition. |
|
2. |
Sanjit Roy vs
State of Rajasthan AIR 1983 SC 328 |
The laboureres were employed under Rajasthan Famine Relief
Works Employees (Exemption from Labour Laws etc) Act 1964. The labourers were
being paid less than what was statutorily mandated and hence, the law itself
was set aside by hon’blw Supreme Court
|
|
3. |
Deena @Din Dayal
vs Union of India
& ors 1983 SC 1155 |
It was held that even a prisoner cannot be subjected to
forced labour and without payment. The laboureres (prisoners) were entitled
to the due wages for the work. |
|
4. |
Bandhua Mukti
Morcha vs Union of India AIR 1984 SC 1802 |
The letter sent was treated as public interest petition and
the hon’ble Supreme Court had noted the pathetic situation and remedial order
was passed. |
MODERN SLAVERY
The Modern slavery describes situations where offenders
use coercion, threats or deception to exploit victims and undermine their
freedom.
Practices that constitute modern slavery can include:
·
human
trafficking
·
slavery
·
servitude
·
forced
labour
·
debt
bondage
·
forced
marriage, and
·
the
worst forms of child labour
The Modern slavery is a term, often used to describe serious and
grave exploitation. With a view to emphasize on the concept, it does not
include practices like sub-standard working conditions or underpayment of
workers, notwithstanding the fact that these practices are also harmful and may
be present in some situations of modern slavery.
BRITISH LAW IN RETROSPECT
During
British Rule, the concept of slavery was banned, and anyone buying or selling
slaves would be booked under the Indian Penal Code with an offence carrying
strict punishment. No doubt, the Act was not welcome by some officials of East
India Company, themselves by citing customs of different religion and sects and
it was feared that the Act may be seen as interference. Notwithstanding the
opposition by some section of East India Company, the Act was implemented. However,
the historian and experts were divided about the impact and efficacy of the
Act. For instance, the condition of workers of tea plantation in Tamil Nadu and
Assam sought to be compared with that of African, West Indian counterparts who
worked in sugar plantations.
Various forms of debt bondage co-existed with formal slavery,
and while the British abolished slavery legislatively through the Anti-Slavery
Act of 1843, large numbers of former slaves traded their status for that of
perpetually bonded servitude. This was in part due to the fact that the British
did not abolish debt-bondage; instead, they regulated it.
Salient
feature of the SLAVERY Act of 1843
There
was complete embargo to a public officer from permitting to sell or cause to be
sold any person, or the right to the compulsory labour or services of any
person on the ground that such person was in a state of slavery. The same was
not permitted in execution of any decree or order of Court, nor for the
enforcement of any demand of rent or revenue,
Similarly,
No rights arising out of an alleged property in the person and services of
another as a slave shall be enforceable under any Civil or Criminal laws or by
law courts, within the territories of the East India Company. It is further
contained that, no person who may have acquired property by his own industry,
or by the exercise of any art, calling or profession, or by inheritance,
assignment, gift or bequest, shall be dispossessed of such property or
prevented from taking possession thereof on the ground that such person or that
the person from whom the property may have been derived was a slave.
Any
act which may constitute a penal offence, if done to a free man shall be
equally an offence if done to any person on the premise of his being in a
condition of slavery.
Modern
Slavery LAW in Australia
The
globalization in business context has a set out parameter and the fact, that a
particular country could be oblivious to the nuances of slavery shall not
preclude it, from complying with the terms as per the parameter laid down. The
country sets out their own norms, with a view to ensure that products offered
there comes from the act of exploitation and slavery. In Australia, the Global
Slavery Index is estimated at 15,000 people, living in “conditions of modern
slavery” in 2016. On a global scale, the estimate is that over 40 million
people are engaged in Modern Slavery. As regards quantum of economics, US $150
billion per year is estimated as being generated from forced labour, in the
global economy and that too from un-organized or private sector. The 2/3rd
of the global slave trade is believed to be in Asia Pacific zone.
The Australian Government is taking a global leadership
role in combating modern slavery. It is the endeavour of the government that a clear
situation should be specified that there is no place for modern slavery in the
Australian community or for that matter, in the global supply chains of goods
and services.
What is of
paramount importance is the fact that the internal practices of suppliers may
not even display signs of Modern Slavery, and only when deeper probe is
undertaken, that traces of slavery could be ascertained. A survey conducted in 2015
in respect of retailers and their tier 1 suppliers had reflected that about 71%
of slavery was likely in their supply chains.
Voluntary modern slavery statements covering the 2019 calendar year
Any Australian entity or foreign entity carrying on a
business in Australia can provide a voluntary statement if they do not meet the
thresholds for mandatory reporting.
The Business and Government Engagement Section in the
Australian Border Force (ABF) is
responsible for driving effective implementation of the Act. This includes
providing guidance and support to reporting entities about compliance.
As the process entails, entities wishing to submit a
voluntary modern slavery statement, should advise the ABF prior to preparing
their statement by sending email on slavery.consultations@abf.gov.au while identifying their entity
name and reporting period.
The capacity of an entity or group should be carefully
considered and resource to prepare a voluntary statement before making a
commitment should be disclosed. Once a party volunteer to report, and the
related reporting period commences, the reporting entity shall be treated as a
mandatory reporting entity.
Conversely, though, if a party or entity is not sure about
whether to report voluntarily, or if some more time is needed to brace an entity
with details, then, instead, a voluntary statement could be prepared and could
be made available on the website of the said entity. The statement should
clearly identify whether it has been formally submitted to the ABF as a voluntary
statement.
Application of the Modern Slavery Act to local government entities
The Act explicitly excludes state and territory
governments from the Reporting Requirement. Consistent with this approach,
local government entities are not required to comply with the Reporting
Requirement. This ensures that local government entities are treated in the
same way as state and territory governments under the Act.
Local governments have an important role to play in
combating modern slavery, particularly as they often have significant
procurement activities. The ABF encourages local government entities to
voluntarily comply with the Act, where they have capacity to do so.
Temporary extension of reporting deadlines under the Modern Slavery Act
The Act requires entities to submit modern slavery
statements to the ABF within six months after the end of their reporting
periods. To support reporting entities impacted by the COVID-19 pandemic
to meet their obligations under the Act, the Australian Government has extended
this legislated deadline for reporting by an additional three months for all
entities, whose reporting periods end on or before 30 June 2020.
This extension recognises that COVID-19 is significantly
impacting many reporting entities due to submit modern slavery statements in
2020. It aims to support these entities to meet their obligations under the Act
by providing them with additional time to assess changing modern slavery risks
linked to COVID-19 and prepare and submit their modern slavery statements. This
extension only changes the deadline for submission of modern slavery statements
and does not alter the reporting periods for entities, which remain unchanged.
Modern
Slavery Expert Advisory Group
The purpose of the Advisory Group is to provide strategic
advice to Government to support the effective implementation of Australia’s
Modern Slavery Act. It comprises of permanent representation from 5 key peak
bodies and a further 10 representatives appointed for an 18-month term.
Modern slavery can occur in every industry and sector and
has severe consequences for victims. Modern slavery also distorts global
markets, undercuts responsible business and can pose significant legal and
reputational risks to entities.
Entities have a responsibility to respect human rights in
their operations and supply chains, as outlined in the United
Nations Guiding Principles on Business and Human Rights. This
includes taking steps to assess and address modern slavery risks.
Taking action to combat modern slavery also makes good
business sense. Entities that take action to combat modern slavery in their
operations and supply chains can protect against possible business harm and
improve the integrity and quality of their supply chains.
They can also increase profitability, investor confidence
and access to financing opportunities.
Modern Slavery Act 2015
The United Kingdom has Slavery
act 2015 in place. For the purpose of the present discussion, suffice to refer
the provision of section 3 of the said Act that encompass meaning of
exploitation.
(1) A person is perceived as exploited,
only, if one or more of the following subsections apply in relation to the
person. If a person is in act of slavery, servitude and forced or compulsory
labour that shall come within the purview of slavery.
(2)The person is construed as the victim of behaviour—
(a)if he is subjected to the
commission of an offence under section 1, or
(b) the commission of an offence
under that section shall be construed, if it took place in England and Wales.
Sexual exploitation
(3)Something is done to or in respect of the person—
(a)which involves the commission of an offence under—
(i) section 1(1)(a) of the
Protection of Children Act 1978 (indecent photographs of children), or
(ii) Part 1 of the Sexual
Offences Act 2003 (sexual offences), as it has effect in England and Wales, or
(b) The commission of offence shall be construed, if
it was done in England and Wales. Removal of organs etc
(4)The person is encouraged,
required or expected to do anything—
(a) which involves the commission, by him or her or another person, of an
offence under section 32 or 33 of the Human Tissue Act 2004 (prohibition of
commercial dealings in organs and restrictions on use of live donors) as it has
effect in England and Wales, or
(b) The commission of such an
offence, by him or her or another person, if it was done in England and Wales,
such as
securing services etc by force, threats or deception
(5)The person is subjected to
force, threats or deception designed to induce him or her—
(a) to provide services of any
kind,
(b) to provide another person
with benefits of any kind, or
(c) to enable another person to acquire benefits of any kind.
Securing services etc from children and vulnerable persons
(6) Another person uses or attempts to use the person for a purpose within
paragraph (a), (b) or (c) of subsection (5), having chosen him or her for that
purpose on the grounds that—
(a) he or she is a child, is
mentally or physically ill or disabled, or has a family relationship with a
particular person, and
(b) an adult, or a person without the illness, disability, or family
relationship, would be likely to refuse to be used for that purpose.
The Modern
Slavery Act
On 1 January
2019, the Modern Slavery Act 2018 (Modern Slavery Act) became effective and its
requirements set out are now fully operational. It entails that Annual Modern
Slavery Statement within six months after the end of your financial year shall
be submitted. This Statement obligates board approval and is to outline the
risk of Modern Slavery in their operations and supply chains (including any
entities owned or controlled by such entity). It is also imperative to report the
actions taken to address those risks and if the efforts put in this regard were
effective. The report shall have to be kept by the Minister for Home Affairs in
a Central Registrar and members of public shall have the opportunity to inspect
such report at any material time.
It is estimated
that over 3,000 Australian businesses may be required to report under these
stipulations. As regards, the entity or operating, in Australia, it is expected
of them that they will report voluntarily.
Risks of
non-compliance as per Modern Slavery Act
Though, no financial
penalties are prescribed, as of now, for non compliance, still, the risk of damaging
the reputation of an organization, who, if opts, not to comply shall be huge choosing not to comply.
Moreover, there is a prescription of ‘name and shame’ any entity that fails to
meet the reporting prescription. The public criticism and shareholder criticism
is prone to damage the business prospect of non complying company, further.
Situation
in New Zealand
What is little surprising is that, unlike
several developed countries, New Zealand has no such legislation that fixes accountability
and crave for transparency in supply chains. It implies that, New Zealand
businesses and consumers could unknowingly be directly or indirectly remained
silent on modern slavery through their operations or supply chains. Though, no
doubt , a segment of people from traders are lobbying on the Government for
seeking introduction of a Modern Slavery Act in the country, as New Zealand
could not remain indifferent to a forward looking and equitable legislation.
Organisation’s outlook
The
Modern Slavery Statement has become the sine
qua non, increasingly across the business spectrum. On January 1st
2019, the Modern Slavery Act 2018 (Commonwealth Act)
has commenced and a new dawn has begun. A new statutory modern slavery
reporting obligation for larger companies operating in Australia has become a
must.
Any
organization should brace itself for compliance and making a slavery statement
and may have to submit modern slavery statement Therefore, it is incumbent on
an organization, with a view to keep pace with the rest to be ready with the
statement and periodically, the policies ought to be reviewed clearly
specifying reviewing its policies, training, whistle-blower mechanisms and
contracting practices. The organization should always brace for having a mechanism
in place and a plan so as to meet the requisites and prescription of the Act. The
inputs from various stakeholders from the relevant business spectrum shall be
of utmost aid.
ENTITIES REQUIRING TO report
Entities
may be required to report under the Commonwealth Act if they are an Australian
entity or carry on business in Australia with a minimum annual consolidated
revenue of $100 million.
The
Modern Slavery Act 2018 (NSW) (NSW
Act) is not yet in force. However, the Legislative Council
Standing Committee on Social Issues announced an inquiry into the NSW Act. The
reporting obligations shall relate to the risk of modern slavery in the
operations and supply chain of a reporting entity and the steps taken in this
regard to identify the risk and nullify. In Australia the reporting is mandatory. Moreover,
the reporting entities should spelt out a reasonable basis if any conclusion
has emerged in their Modern Slavery statement. The assessment , therefore has
to be , immaculate. It is thus crucial that reporting entities should list out
their supply chains and review its operations with a view to comply with the new
reporting obligations.
REMARK
The slavery law and anti slavery measures are now in
place in various countries and in some countries, where the same are yet to be
formalized, the process appears to have started and it is only a matter of some
time, when, most of the country shall have their parameter laid down. The
business scenario has become global and the world, being a global village, in
terms of transaction, the organic linkage between the countries are a given
situation. In the broad canvass as is spanned out above, this is incumbent on
an organization to submit a Modern Slavery Statement if it works in various
countries as the obligation stipulated in a given country , in any case, has to
be complied with. In order to comply with the norms as prescribed, the requirement
should be meticulously examined and existing policies, mode and manner of
training, whistle-blower mechanisms and tenets of contracting practices should be
re-visited by an organization seeking to comply with the terms of the
respective countries, it operates. A plan is to be visualized by an entity, so
as to meet the requirements of the Anti Slavery terms and Act. This may
necessitate input of stakeholders from across the relevant business units of an
organization and to synchronize that in a manner the same could be made
strictly compliant to the norms laid down in this regard.
Anil K Khaware
Founder & Sr Associate
Societylawandjustice.com
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