Law&poverty.docx

March 31

Bonded Labour

2019

SUBMITTED BY: MEHWISH KHALIL COURSE

: B.A.LL.B (H) S/F

YEAR

: 2ND YEAR

COLLEGE

: FACULTY OF LAW, JMI

SUBMITTED TO: DR. RASHEED CA

ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my teacher DR. RASHEED CA who gave me the golden opportunity to do assignment on “BONDED LABOUR” which also helped me in doing a lot of Research and I came to know about so many new things, I am really thankful to him. Secondly, I would also like to thank my parents and friends who helped me a lot in finalizing this assignment within the limited time frame. -MEHWISH KHALIL

BONDED LABOUR INTRODUCTION A practice in which employers give highinterest loan to workers whose entire families then labor at low wages to pay off the debt; the practice is illegal in the United States. Bonded labour is one of the socio-economic evils of India. It is being practiced from ancient times and unfortunately, it is still continued to be practiced in various forms in almost every part of the world. Under Section 2(g) of Bonded Labour Act, 1976, bonded labour is defined. Under this system, a person is given no or nominal numeration in return for his labour. It is also known as debt-bondage. This is because the bonded labour is generally demanded as a means of their repayment of a loan. This is an inhumane practice has been used by exploitative Zamindars or money-lenders as a trick to avail unpaid labour. Bonded labour - or debt bondage - is probably the least known form of slavery today, and yet it is the most widely used method of enslaving people. A person becomes a bonded labourer when their labour is demanded as a means of repayment for a loan. The person is then tricked or trapped into working for very little or no pay. Debt bondage occurs when a person is forced to work to pay off a debt. They are tricked into working for little or no pay, with no control over their debt. Most or all of the money they earn goes to pay off their loan. The value of their work invariably becomes greater than the original sum of money borrowed. Bonded labour has existed for hundreds of years. Debt bondage was used to trap indentured labourers into working on plantations in Africa, the Caribbean and South-East Asia, following the abolition of the Transatlantic Slave Trade. Bonded labour is most widespread in South Asian countries such as India and Pakistan. Often entire families have to work to pay off the debt taken by one of its members. Sometimes, the debt can be passed down the generations and children can be held in debt bondage because of a loan their parents had taken decades ago. In South Asia it still flourishes in agriculture, brick kilns, mills, mines and factories. Anti-Slavery International works in India where hundreds of thousands men, women and children are forced to work as bonded labourers in brick kilns and agriculture, often suffering extreme exploitation and abuse. Debt bondage in a wider sense is spread much beyond South Asia and is an element of many other forms of slavery such as forced labour and trafficking. People borrow money to pay their traffickers for a promised job abroad. Once at their destination their passports are taken away and they cannot leave until they pay off the debts they owe to their traffickers.

Bonded labour flourishes because of poverty and widespread caste-based discrimination. Limited access to justice, education and jobs for discriminated groups makes it difficult to get out of poverty. The need for cash for daily survival forces people to sell their labour in exchange for a loan. In South Asia bonded labour is rooted in the caste system and predominately affects Dalits (a caste called the ‘Untouchables’). Despite the fact that bonded labour is illegal the laws are rarely enforced, particularly where the people who exploit those from more vulnerable groups belong to the ruling classes.

CAUSES OF BONDED LABOUR There are many cultural reasons for the persistence of child labor in India. An expectation that Children should contribute to the socioeconomic survival of the family and community, as well as the existence of large families, land scarcity, and inadequate enforcement of labour laws are Contributing factors to this problem. In urban areas, following the migration of families to overpopulated cities, the disintegration of such families due to alcoholism and unemployment often results in a proliferation of children living on the street, becoming laborers, and entering into prostitution. In India, the bonded labour is also an off-shoot of our caste-system. specially the person belonging to the so-called higher castes such as Rajput and Brahmins who are the exploiters and person belonging to the lower castes such as Shudras who are the exploited. Due to their weak economic and social-cultural within the society, the SC/STs, Dalits are forced to sell their labours for nominal or no remuneration to the village, landlords or moneylenders. Its practice continuing from ancient times and in some parts of the country is still prevalent. Other reasons are large families, poor education and lack of awareness among the backward people, it makes their condition worse. Sometimes the force or coercion is also used by powerful landlords to make bonded labour contracts. Thus, basically, it is an exploitative practice root of which lie in vast inequalities and disparities existing in social, economic and cultural aspects of India.

VARIOUS LEGISLATION ON BONDED LABOUR Bonded labour is prohibited in India by law vide Articles 21 and 23 of the Constitution. A specific law to prohibit the practice was legislated only in 1976 known as the Bonded Labour System (Abolition) Act. With the commencement of the Act the following consequences followed: bonded labourers stand freed and discharged from any obligation to render to bonded labour. All customs, traditions, contracts, agreements or instruments by virtue of which a person or any member of family dependent on such person is required to render bonded labour shall be void. Every obligation of bonded labourer to repay any bonded debt shall be deemed to have been extinguished. No suit or any other proceeding shall lie in any Civil Court or any other authority for recovery of any bonded debt. Every decree or order for recovery of bonded debt not fully satisfied before commencement of the Act shall be deemed to have been fully satisfied. Every attachment for the recovery of bonded debt shall stand vacated. Any moveable property of boned labourer, if seized and removed form his custody shall be restored to him. Any property possession of which was forcibly taken over by the creditor shall be restored to the possession of the person form whom seized. Any suit or proceedings of the enforcement of any obligation under the bonded labour system shall stand dismissed. Every bonded labourer who has been detained in Civil Prisons shall be released from detention forthwith. Any property of a bonded labourer under mortgage, charge, lien or any other encumbrance, if related to public debt shall stand freed and discharged from such mortgage. Freed bonded labourer shall not be evicted from the homestead land. Despite the statutory prohibition, bonded labour is widely practiced. The worst affected are the children and women particularly those from the Dalit community. The legal framework against bonded labour provided in the Bonded Labour System (Abolition) Act, 1976 is supported by other legislations like the Contract Labour (Regulation and Abolition) Act, 1970; the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979; the Minimum Wages Act, 1948. Bonded labour is characterized by a relationship between employer and employee, through a loan, and is embedded intricately in India’s socio-economic culture—a culture that is a product of class relations, a colonial history, and persistent poverty. Also known as debt bondage, bonded labor is a specific form of forced labour in which compulsion into servitude is derived from debt. Categorized and examined in the scholarly literature as a type of forced labor, bonded labour entails constraints on the conditions and duration of work by an individual. Not all bonded labor is forced, but most forced labor practices, whether they involve children or adults, are of a bonded nature. Bonded labour is most prevalent in rural areas where the agricultural industry relies on contracted, often migrant laborers. However, urban areas also provide fertile ground for bondage. Characterized by a creditor-debtor relationship that a labourer often passes on to his family members, bonded labor is typically of an indefinite duration and involves illegal contractual stipulations. These contracts deny an individual the basic right to choose his or her employer, or to negotiate the terms of his or her contract. Bonded labor contracts in India are not only economic,

as they are reinforced by custom or coercion in many sectors such as the agricultural, silk, mining, match production, and brick kiln industries, among others. Bonded labourers are forced to work to repay debts their employer says they owe, and they are not allowed to work for anyone else. Various forms of force are used to make sure that they stay. In many cases they are kept under surveillance, sometimes under lock and key. Bonded labour in the farming sector is mostly due to caste based prejudices practiced against the Dalit communities and due to the absence of a proper land reform policy. In states like Kerala, where land reforms have been implemented by statute, bonded labour virtually has been eliminated as opposed to States like Gujarat, Uttar Pradesh, Bihar, Tamil Nadu and Karnataka where large portions of land are still held by families who practice feudal forms of land ownership and labour employment. Owing to lack of livelihood options, large number of rural population are forced to work for landlords and eventually end up in perpetual debt traps resulting in entire families and villages ending up as bonded to the landlord for generations. The absence of public health facilities and education opportunities literally push the rural population to work either as bonded labourers or to migrate into urban areas seeking odd jobs. A large number of children employed as bonded labourers by the non-farming sectors like small-scale textile, firecracker, leather goods manufacturing, brick kilns and granite extraction units are from the families who are subjected to distress migration from the rural villages. In the cities, children from these families are employed as bonded labourers in restaurants and eateries or end up being employed as bonded beggars or fall prey to sex trade. In Meghalaya, extraction of coal in private coal mines in the Jaintiya hills region is exclusively undertaken by manual labourers, thousands of them being bonded, who have come to work in the mines from neighboring States to beat acute poverty. It was reported in the Hindu news paper on 19/10/2012 that a person had sold himself and his wife as bonded labourers against a loan of Rs. 45,000/- four years ago to the village landlord. He died this August leaving behind the unpaid debt. The fact that both husband and wife had worked for virtually no money and ate only stale food at the farm of the landlord day and night did not help. The debt only accumulated interest. The husband was often beaten up so brutally at work that he wouldn’t be able to stand the next day. The wife is now being ex-communicated from the village until she pays the landlord’s unpaid debt. It is illegal but accepted practice in Punjab to employ labourers against the loan. These bonded labourers are paid almost no or very little salary and are kept poor deliberately so that they are never able to pay back the dues to the landowners. These are glaring examples. However many States take a stand that there are no bonded labourers in their States and that all that was required to be done has been done. Eradication of bonded laoburers is not a onetime event. It can occur and recur any time in any industry/occupational/process.

ANALYSIS

Instances of prevalence of forced and bonded labour system are noticed now and then even after its abolition by law with effect from 25th October, 1975. The reasons are spelt out exhaustively at Section 2(g) of The Bonded Labour System (Abolition) Act, 1976. The root of the problem lies in the social customs and economic compulsions and they are yet to change in the desired direction. Government of India has adopted a three-pronged strategy for abolition of bonded labour system: (i) The Constitution of India vide Art.23 prohibits forced labour; (ii) Central Government enacted the Bonded Labour System (Abolition) Act, 1976; The Act empowers Executive Magistrates to exercise powers of Judicial Magistrate of first or second class for trial of offences; Vigilance Committees at District and Sub-divisional levels have been prescribed to identify and rehabilitate bonded labourers and (iii) a Centrally Sponsored Plan Scheme for Rehabilitation of Bonded Labour is under implementation since 1978 by which Central Government contributes Rs. 10,000/- for each case of rehabilitation. Actions against the employers of bonded labour under the Bonded Labour System (Abolition) Act, 1976 are to be taken by the State Governments. Under the Act, the District Magistrate has been conferred with the powers of Judicial Magistrate first class for convicting the perpetrators of bonded labour system. The Act provides for punishment of imprisonment for a term upto three years and fine up to Rs. two thousand for extracting bonded labour under the bonded labour system. Central Government does not maintain records on the number of cases and action taken against the guilty. This is not mandated under the Act.

The State/ UT- wise number of bonded labourers identified, released and rehabilitated and central assistance released to the States under the Centrally Sponsored Plan Scheme up to 31.03.2015.

Name of the State

Number of Bonded Labourers Identified Released

and Rehabilitated

Central provided

assistance

(Rs. in lakhs) Andhra Pradesh Arunachal Pradesh Bihar Chhattisgarh Gujarat Haryana Jharkhand Karnataka Kerala Madhya Pradesh Maharashtra Odisha Punjab Rajasthan Tamil Nadu Uttar Pradesh Uttaranchal West Bengal TOTAL

38,141 3,526 15,395 2215 64 594 196 64,600 823 13,317 1,404 50,441 252 7713 65,573 355,72 5 344 3,00,175*

31,687 2992 14,577 2215 64 92 196 58,348 710 12,392 1,325 47,313 252 6556 65,573 355,72 5 344 2,80,213

865.30 568.48 548.98 221.5 1.01 5.23 19.60 1694.48 15.56 169.90 10.10 944.53 25.20 94.92 1661.94 1308.13 0.50 27.26 8182.62

NOTE * 19962 Bonded Labourers are not available for rehabilitation; they are either dead or untraceable as per report. * An amount of Rs. 8182.62 lakhs as matching rehabilitation grant has also been provided by the State Governments for rehabilitation of bonded labour. * In the case of North Eastern regions, 100% Central grants (without matching States share) are provided for rehabilitation of bonded labour. However, only Arunachal Pradesh has availed the 100% Central assistance amounting to Rs. 568. 48 lakhs.

PREVENTIVE MEARURES Constitutional Safeguards Now that we are aware of what exactly is a system of bonded labour, let us delve further into the constitutional safeguards. In the Constitution of India, there are a few safeguards which address the system at hand. 1. Article 21 of the Indian Constitution – This is the most important and foremost safeguard against any exploitation of human lives and their liberty. It is part of the Basic Structure of the Constitution and cannot be amended. It secures the right to life and right to live with human dignity to every person in India. So, any practice of bonded labour would be in contravention of this Constitutional provision since bonded labour deprives a person of numerous liberties.

2. Article 23 of the Indian Constitution – As discussed above, the Constitution of India expressly provides for the abolition of forced labour and prohibits this form of forced labour in the territory of India. This not only prohibits bonded labour but also covers the practice of Beggar and other forms of human trafficking in India.

3. Article 39 of the Constitution – This is covered in Part IV of the Indian Constitution which deals with the Directive Principles of State Policy is albeit not enforceable but are considered irrefutable for the purpose of governance. This constitutional provision directs the State to secure the right to an adequate livelihood. It also directs the state to formulate its policies with an object that no citizen is forced out of economic necessity to enter into avocations which are not suited to them.

4. Article 42 of the Constitution – This is also a Directive Principle of State Policy which states “The State shall make provision for securing just and humane conditions of work…” This means that the state must ensure that every person has a working condition which is just and humane for them. However, since it is part of Part IV, it cannot be enforced.

5. Article 43 of the Constitution – This directive directs the State to secure i.e. – conditions for work ensuring a decent standard of life.

What are the laws in India? Apart from the above mentioned constitutional provisions and safeguards, there are also a few legislations which deal with the subject at hand. However, the major law governing the practice of bonded labour is The Bonded Labour System (Abolition) Act 1976. In addition to this, there are a few more legislations in consonance with this major law in India such as Contract Labour (Regulation and Abolition) Act 1970, Minimum Wages Act 1948 and the Inter-State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979 and even the Indian Penal Code 1860.  The

Indian Penal Code recognizes the offence of unlawful compulsory labour and imposes a punishment of imprisonment for a term extendable to 1 year or with a fine or both.  The Minimum Wages Act 1948 sets the minimum wage for certain enumerated occupations and requires that overtime are paid to whoever working beyond the ‘normal working day.’  Similarly, the Bonded Labour System (Abolition) Act 1976 prescribes imprisonment for a term up to 3 years as well as a fine up to Rs. 2000/-. This punishment is for whoever compelling a person to render their service under bonded labour and whoever advancing the bonded debt. Every offence under the Act is cognizable and bailable. What is the consequence of abolition after 1976 under the Act of 1976? 1. All the bonded labourers are freed and discharged from all the obligations to render their bonded labour. 2. All of the customs, traditions, contracts, agreements or any instruments by virtue of which a person (or any member of the family) is required to render bonded labour to someone will now be deemed as void. 3. Every obligation of a bonded labourer to repay any bonded debt shall be deemed to be extinguished. 4. All the decrees for recovery of bonded labour debt which was not fully satisfied shall be deemed as fully satisfied after the commencement of the Act. 5. Every property of a bonded labourer which was removed from his possession or forcible taken from him, shall be restored to him. 6. Every bonded labourer who has been detained in Civil Prison shall be released. 7. Freed bonded labourers shall not be evicted from their homestead.

Supreme Court Cases From the above stated constitutional provisions, it would not be incorrect to say that the State is vested with the responsibility of securing every citizen with a decent standard of living and ensuring that the prohibited practices like bonded labour are not practiced in India. Despite these constitutional provisions, can we say that bonded labour does not exist in India? There have been cases in India even after the enactment of the Act which the Apex Court has dealt very deftly. In the case of Neerja Chaudhury v. State of Madhya Pradesh1, the Supreme Court ruled – “It is the plainest requirement of Articles 21 and 23 of the Constitution that bonded labourers must be identified and released and on release, they must be suitably rehabilitated… Any failure of action on the part of the State Government[s] in implementing the provisions of [the Bonded Labour System (Abolition) Act] would be the clearest violation of Article 21 and Article 23 of the Constitution.” As mentioned above, there are a few constitutional provisions that safeguard the system of bonded labour from being practiced. In this case, the Apex Court did very well by relating the issue of bonded labour system with the person’s fundamental right enshrined in Article 21 of the Constitution and gave a clear thrust to the State to implement Article 21 and Article 23 of the Constitution. Also, in the case of People’s Union for Democratic Rights v. Union of India2, the Supreme Court of India delivered the judgment stating – “Where a person provides labour or service to another for remuneration which is less than minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the word `forced labour’…” Also, in the case of Bandhua Mukti Morcha v Union of India3, a PIL was filed by an organization working for the development of Bonded Laborers. As seen, the Court has tried to expand the scope of forced labour and protect the rights of citizens time and again and the Supreme Court has ruled in various decisions that bonded labour can be regarded as a form of forced labour and hence is unconstitutional under Article 23. This is the fundamental rights guaranteed by our Indian constitution and to give effect to article 23. Parliament has enacted the Bonded Labor System Act, 19764. The Act makes the system of bonded labour a punishable offence.

1

AIR 1984 SC 1099, 1984 (2) Crimes 511 SC, 1984 LablC 851, 1984 (1) SCALE 874, (1984) 3 SCC 243 1982 AIR 1473, 1983 SCR (1) 456 3 1984 AIR 802, 1984 SCR (2)67 4 1976 2

CONCLUSION There are a few elements which are causing the duration of this arrangement of constrained work. Regularly, the usurious rate of intrigue is one of the main elements which add to its duration. Aside from that, flawed arrangement of change of wages with the sum loaned, common obliviousness, absence of education, being socially in reverse, absence of indebted person's association and so on are on the whole factors adding to the continuation of reinforced labour. The arrangement of fortified work is an assertion between two gatherings; an understanding which in the present date, stands void according to law and is additionally a culpable offense under various enactments of India. Because of the gravity of this offense, it has additionally been tended to in various global traditions. Fortified work is presumably the minimum known type of servitude in the present date but then, incidentally, it is most generally performed type of bondage. There have been a few activities by the National Human Rights Commission to control this training. Aside from that, even the Supreme Court has censured this training in India and has given it a broad importance so it isn't drilled in any frame at all. Be that as it may, is this enough? No, we should make strides against any arrangement of constrained work and should voice out if a man is being abused because of his status. This is a framework which debases a human to an item or an advantage. It ought be restricted by law as well as be truly rebuffed. Along these lines, constrained work, whatever frame it might be, ought not to be denounced by anybody.

BIBLIOGRAPHY BOOKS  

Textbook on International Law – Martin Dixon International Law – Vaughan Lowe

WEBSITES    

www.lawoctopus.com www.indiankanon.com www.nhrc.nic.in www.scconline.com