Volunteers for Social Justice - Dalit Dasta Virodhi Andolan

What is Bonded Labour System?
What is Beggar?
Weather paying wages less than the minimum wages fixed by the State/Central Government amounts to forced labour?
Weather a contract of work is enforceable?
What is the difference between Slavery, Beggar and Bonded Labour?
Weather the state is in obligation to protect the fundamental rights of weaker citizens?
Weather the state is in obligation to eliminate Bonded Labour System?
Weather the Bonded Laborers have to prove that he/she is in Bondage?
Weather the identification of Bonded Labour can be trusted to Patwaris, Tehsildars and Panchayats?
Weather the Social Action Groups have a role to play in the process of identification of Bonded Labour?
Is there any procedure to identify the Bonded Laborers?

The thrust of the Act is against continuance of any form of bonded labour. It is of course true that strictly speaking, a bonded labourer is a labourer who incurs or has on presumed to have incurred a bonded debt and bonded debt means an advance obtained or presumed to have been obtained by a bonded labourer under or in pursuance of the bonded labour system and it would therefore appear that before a labourer can be regarded as a bonded labourer he must not only be forced to provide labour to the employer but he must have also received an advance or other economic consideration from the employer unless he is made to provide forced labour in pursuance of any custom or social obligation or by reason of his birth in a particular caste or community. It was on the basis of this definitional requirement that the learned Additional Solicitor General on behalf of the State of Haryana put forward the argument that even if the workmen employed in the stone quarries and stone crushers were being compelled to provide forced labour, they were not bonded laborers, since it was not shown by them or by the petitioner that they were doing so in consideration of an advance or other economic consideration received from the mine-lessees and owners of stone crushers. Now if this contention of the learned Additional Solicitor General were well founded, it would become almost impossible to enforce the provisions of the Bonded Labour System (Abolition) Act 1976 because in every case where bonded laborers are sought to be identified for the purpose of release and rehabilitation under the provisions of the Act, the State Authorities as also the employer would be entitled to insist that the bonded laborers must first prove that they are providing forced labour in consideration of an advance or other economic consideration received by them and then only they would be eligible for the benefits provided under the Act and this would make it extremely difficult, if not impossible, for the laborers to establish that they are bonded laborers because they would have no evidence at all to prove that any advance or economic consideration was provided to them by the employer and since employment of bonded laborers is a penal offence under the Act the employer would immediately, without any hesitation, disown having given any advance or economic consideration to the bonded laborers.

What is Beggar?

It was a long standing custom of the village for each of the house-holders of the village to offer one day's free labour to the Headman or Khullakpa of the village for his being Headman and for his first settlement in the village. Accordingly every house-holder was offering the labour without any trouble. The appellant refused to offer such free labour in 1989. Thereupon there was a case in the Court of the S.D.O. as Miscellaneous Case No. 83 of 1939-40 filed by the respondent against the appellant in which a decree was passed that the villagers were bound to give the usual labour to the respondent and that the respondent shall announce to the village the day on which he wished his harvest to be cut and if the appellant or other villagers still refused to offer their free labour they will be fined Rs. 50/- which amount will be paid to the respondent as compensation. The said order of the S.D.O. Mr. S.J. Duncan dated 14-11-39 was marked as Ext. 1 in the suit.

Weather paying wages less than the minimum wages fixed by the State/Central Government amounts to forced labour ?

We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wages, the labour or service provided by him clearly falls within the scope and ambit of the word "forced labour" under Article 23. Such a person would be entitled to come to the Court for enforcement of his fundamental right under Article 23 by asking the Court to direct payment of the minimum wage to him so that the labour or service provided by him ceases to be 'forced labour' and the breach of Article 23 is remedied.

Weather a contract of work is enforceable ?

It is therefore clear that even if a person has contracted with another to perform service and there is consideration for such service in the shape of liquidation of debt or even remuneration, he cannot be forced, by compulsion of law or otherwise, to continue to perform such service, as that would be forced labour within the inhibition of Art.23. this Article strikes at every form of forced labour even if it has its origin in a contract voluntarily entered into by the person obligated to provide labour or service vide Pollock v. William, (1943) 322 U.S.4. : 88 Law Ed.1095. The reason is that it offends against human dignity to compel a person to provide labour or service to another if he does not wish to do so, even though it be in breach of contract entered into by him. There should be no serfdom or involuntary servitude in a free democratic Indian which respects the dignity of the individual and the worth of the human person.

What is the difference between Slavery, Beggar and Bonded Labour?

Moles worth describes 'begar' as "labour or service exacted by a government or person in power without giving remuneration for it." Wilson's glossary of Judicial and Revenue Terms gives the following meaning of the word 'begar': "a forced labourer, one pressed to carry burthens for individuals or the public. Under the old system when pressed for public service, no pay was given. The Begari, though still liable to be pressed for pubic objects, now receives pay. Forced labour for private service is prohibited." "Begar" may therefore be loosely described as labour or service which a person is forced to give without receiving any remuneration for it. That was the meaning of the word 'begar' accepted by a Divisional Bench of the Bombay High Court in S. Vasudevan v. S.D. Mital, AIR 1962 Bom 53. 'Begar' is thus clearly a film of forced labour. Now it is not merely 'begar' which is unconstitutionally prohibited by Art.23 but also all other similar forms of forced labour. This articles strikes at forced labour in whatever form it may manifest itself, because it is violative of human dignity and is contrary to basic human values. The practice of forced labour is condemned in almost every international instrument dealing with human rights. It is interesting to find that as far back as 1930 long before the Universal Declaration of Human Rights came into being, International Labour Organization adopted Convention No.29 laying down that every member of the International Labour Organization which ratifies this convention shall "suppress the use of forced or compulsory labour in all its forms" and this prohibition was elaborated in Convention No.105 adopted by the International Labour Organization in 1957. the words "forced or compulsory labour" in Convention No.29 has of course a limited meaning but that was so on account of the restricted defintion of these words given in Article 2 of the Convention. Article 4 of the European Convention of Human Rights and Article 8 of the International Covenant on Civil and Political Rights also prohibit forced or compulsory labour. Art.23 is in the same strain and it enacts a prohibition against forced labour in whatever from it may be found.

Weather the state is in obligation to protect the fundamental rights of weaker citizens?

State is under a constitutional obligation to see that there is no violation of the fundamental right of any person, particularly when he belongs to the weaker sections of the community and is unable to wage a legal battle against a strong and powerful opponent who is exploiting him. Court in the Judges Appointment and Transfer case (supra) that where a member of the public acting bona fide moves the Court for enforcement of a fundamental right on behalf of a person or class of persons who on account of poverty of disability or socially or economically disadvantaged position cannot approach the Court for relief, such member of the public may move the Court even by just writing a letter, because it would not be right or fair to expect a person acting pro bona publico to incur expenses out of his own pocket for going to a lawyer and preparing a regular writ petition for being filed in Court for enforcement of the fundamental right of the poor and deprived sections of the community and in such a case, a letter addressed by him can legitimately be regarded as an "appropriate" proceeding.. Where one of the parties to a litigation belongs to a poor and deprived section of the community and does not possess adequate social and material resources, he is bound to be at a disadvantage as against a strong and powerful opponent under the adversary system of justice, because of his difficulty in getting competent legal representation and more than anything else, his inability to produce relevant evidence before the Court. Therefore, when the poor come before the Court, particularly for enforcement of their fundamental rights, it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring the necessary material before the Court for the purpose of securing enforcement of their fundamental rights. It must be remembered that the problems of the poor which are now coming before the Court are qualitively different from those which have hitherto occupied the attention of the Court and they need a different kind of lawyering skill and a different kind of judicial approach. If we blindly follow the adversarial procedure in their case, they would never to able to enforce their fundamental rights and the result would be nothing but mockery of the Constitution. We have, therefore, to abandon the laissez faire approach in the judicial process particularly where it involves a question of enforcement of fundamental rights and forge new tools, device new methods and adopt new strategies for purpose of making fundamental rights meaningful for the large masses of people. And this is clearly permissible on the language of Clause (2) of Article 32 because the Constitution makers while enacting that clause have deliberately and advisedly not used any words restricting the power of the Court to adopt any procedure which it considers appropriate in the circumstances of a given case for enforcing a fundamental right.

Weather the state is in obligation to eliminate Bonded Labour System?

The first question that arises in regard to the implementation of the Bonded Labour System (Abolition) Act 1976 is that of identification of bonded labour. One major handicap which impedes the identification of bonded labour is the reluctance of the administration to admit the existence of bonded labour, even where it is prevalent. It is therefore necessary to impress upon the administration that it does not help to ostrich-like bury its head in the sand and ignore the prevalence of bonded labour, for it is not the existence of bonded labour that is a slur on the administration but its failure to eradicate it and moreover not taking the necessary steps for the purpose of wiping out this blot on the fair name of the State is a breach of its constitutional obligation. More importantly non-political social action groups and voluntary agencies and particularly those with a record of honest and competent service for Scheduled Castes and Scheduled Tribes, agricultural laborers and other unorganized workmen should be involved in the task of identification and release of bonded laborers, for it is primarily through such social action groups and voluntary agencies alone that it will be possible to eradicate the bonded labour system, because social action groups and voluntary agencies comprising men and women dedicated to the cause of emancipation of bonded labour will be able to penetrate through the secrecy under which very often bonded laborers are required to work and discover the existence of bonded labour and help to identify and release bonded laborers.

Weather the Bonded Laborers have to prove that he/she is in Bondage ?

For the laborers to establish that they are bonded laborers because they would have no evidence at all to prove that any advance or economic consideration was provided to them by the employer and since employment of bonded laborers is a penal offence under the Act the employer would immediately, without any hesitation, disown having given any advance or economic consideration to the bonded labourers.It would be cruel to insist that a bonded labourer in order to derive the benefits of this social welfare legislation, should have to go through a formal process of trial with the normal procedure for recording of evidence. That would be a totally futile process because it is obvious that a bonded labourer can never stand up to the rigidity and formalism of the legal process due to his poverty, illiteracy and social and economic backwardness and if such a procedure were required to be followed, the State Government might as well obliterate this Act from the statute book. The State government can not be permitted to repudiate its obligation to identify, release and rehabilitate the bonded laborers on the plea that though the concerned laborers may be providing forced labour, the State government does not owe any obligation to them unless and until they show in an appropriate legal proceeding conducted according to the rules of adversary system of justice, that they are bonded laborers."
This is the test which has to be applied for the purpose of determining whether a workman is a bonded labourer or not and we would therefore direct the State government to apply this test throughout its territory for the purpose of ascertaining whether there are any bonded laborers or not and if so how large is their number. Whenever it is found that any workman is forced to provide labour for no remuneration or nominal remuneration, the presumption would be that he is a bonded labourer unless the employer of the State Government is in a position to prove otherwise by rebutting such presumption.

Weather the identification of Bonded Labour can be trusted to Patwaris, Tehsildars and Panchayats ?

The Commissioners and Collectors have multifarious duties to attend and even if they are anxious to help in eradication of the vice of bonded labour system, which we are sure, they are, they would not find time to make any personal inquiry or investigation but they would have to rely on their subordinate officers such as tehsildars and patwaris and at many places, the patwaris and tehsilders being either in sympathy with the exploiting class or lacking in social commitment or indifferent to the misery and suffering of the poor and the down-trodden, the task of identification, release and rehabilitation of bonded labour through the official machinery would be very difficult of achievement. The panchayats also dominated as they sometimes are, by vested interests, and having regard to their mode of functioning, may not be very effective in this task. What is really necessary is to involve social action groups operating at the grass root level in the task of identification and release of bonded laborers. We do not think much useful purpose will be served by asking petty officials of the Revenue Department to go from house to house with a view to ascertaining whether there are any bonded laborers or not. We had some time back a case before us where pursuant to a direction given by the Collector as a result of an order made by this court the tehsildar went to the villages in question and sitting on a dias with the landlords by his side, he started enquiring of the laborers whether they were bonded or not and when the laborers, obviously inhibited and terrified by the presence of the landlords, said that they were not bonded but they were working freely and voluntarily, he made a report to the Collector that there were no bonded laborers. It is only through social action groups working among the poor that we shall be able to discover the existence of bonded labour and we shall be able to identify and release them.

Weather the Social Action Groups have a role to play in the process of identification of Bonded Labour ?

No there is nothing in the rules but Sh. S.S. Shankaran has developed methodology for identification of bonded laborers. We would also direct the State government to take immediate action for identification and release of bonded laborers, whenever any representative of these social action groups, whether on the vigilance committee or not, points out to the Collector District Magistrate or the Deputy Collector that there is existence of bonded labour at a particular place and whenever any officer of the District administration goes to such place for identification and release of bonded labour on the basis of the information given by such representative of the social action group, he shall take such representative with him and a copy of the report made by him shall be handed over immediately to such representative of the social action group. We are therefore of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words 'forced labour' under Article 23. Such a person would be entitled to come to the Court for enforcement of his fundamental right under Article 23 by asking the Court to direct payment of the minimum wage to him so that the labour or service provided by him cease to be 'forced labour' and the breach of Article 23 is remedied.

Is there any procedure to identify the Bonded Laborers ?

A poor peasant or an agricultural worker takes a small loan, his dues accumulate very fast under exorbitantly high rate of interest, soon he finds it impossible to extinguish his debts he is dispossessed of his property but still he continues in debts. He then begins to work for his creditor under absurdly low wages and hopes to repay the debts by the fruits of his labours; but the cruel logic of usury defeats him; his children and grand children also begin to work for nominal wages to liquidate the debt. Generations after generations virtually become slaves to the creditors. The entire future of the family becomes mortgaged to a small loan taken in the remote past; the debt becomes the destiny. Bonded labourer ceases to be a free economic agent; he is reduced to an appendage of feudal property. The debt dehumanises him; he lives like a subman; indeed he lives like a thing.

Shri laxmidhar Mishra former secretary union of India, labour and Employment Dept. (then Director General welfare when appointed as commissioner by Supreme Court of India in writ petition No. 2135 has also developed a methodology that is available in the book titled-“Burden of Bondage”.