Documenti di Didattica
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2018 - 19
PROJECT ON Labour law
MANIK KAPOOR
CONTENTS
1. INTRODUCTION
2. WHAT IS BONDED LABOUR?
3. THE CONCEPT
4. INDIAN CONSTITUTION
5. JUDICAL ACTIVISM IN RELATION TO THE
ERADICATION OF BONDED LABOUR
6. CAUSES OF BONDED LABOUR
7. POSITION IN INDIA
8. MISERY AND SUFFERING IN BONDAGE
9. CONCLUSION
INTRODUCTION
The origin of bonded labour can be traced from the caste hierarchy and
feudal structure. In earlier times the people were divided into four
categories i.e. Brahmin, kshatriya, vaishya and shudra. Since the lower
caste persons did not have enough land to cultivate, they needed money
for fulfillment of social obligations besides satisfaction of their
physiological needs and for this purpose they become indebted to the
higher caste persons. As the debtor has nothing to offer as security, the
creditor demanded that he pledges his person and work for the creditor in
lieu of the redemption of debt and interest. Guarantee of a permanent
source of cheap labour on a long term basis was the main interest of the
money lender. A man keeping another man in perpetual bondage for his
selfish and personal designs is a kind of man’s cruelty to man which is
not confined to a particular country or a particular region but is found as
a global phe-nomenon for thousands of years, right from the Biblical days
to the present era. The nomenclature changed from period to period and
place to place: slave, serf, and bonded labour.
The 1976 Bonded Labour (Abolition) Act defines ‘bonded labour system’
as “the system of forced labour under which a debtor enters into an
agreement with the creditor that he would render service to him either by
himself or through any member of his family or any person dependent on
him, for a specified or unspecified period, either without wages or for
nominal wages, in consideration of loan or any other economic
consideration obtained by him or any of his ascendants, or in pursuance
of any social obligation, or in pursuance of any obligation devolving on
him by succession”.
The agreement has other consequences too, such as, forfeit-ing the debtor
the freedom of employment, denial of freedom of movement in any part
of the country, and denial of the right to sell at market value any of his
property or product of his labour.
The term ‘bonded labour’ has been defined by the National Commission
on Labour as “labour which remains in bondage for a specific period for
the debt incurred”. The Commissioner for Scheduled Castes and
Scheduled Tribes explained the term bonded labour in its 24th report as
“persons who are forced to work for the creditors for the loan incurred
either without wage or on nominal wage”.
both unpaid and paid labour were prohibited by Article 23, so long as the
element of force or compulsion was present in the worker's ongoing
services to the employer. The Supreme Court also interpreted the term
forced labour to mean providing provides labour or service to another for
remuneration which is less than minimum wage. All labour rewarded with
less than the minimum wage, then, constitutes forced labor and violates
the Constitution of India. The Supreme Court ruled that:
(e) that the health and strength of workers... and the tender age of
children are not abused and that citizens are not forced by economic
necessity to enter avocations unsuited to their age or strength.
The Bonded Labour System (Abolition) Act purports to abolish all debt
agreements and obligations arising out of India's longstanding bonded
labour system. It is the legislative fulfilment of the Indian Constitution's
mandate against begar and forced labour. It frees all bonded labourers,
cancels any outstanding debts against them, prohibits the creation of new
bondage agreements, and orders the economic rehabilitation of freed
bonded labourers by the state. It also criminalizes all post-act attempts to
compel a person to engage in bonded labour, with maximum penalties of
three years in prison and a 2,000 rupee fine. The Bonded Labour System
(Abolition) Act offers the following definition of the practices being
abolished.
In Neerja Choudhary v. State of MP, the main issue in this case related
to the effective rehabilitation of the released bonded labourers. The
petitioners alleged that even after a lapse of a long time 135 labourers of
the Faridabad stone quarries were not rehabilitated. They further alleged
that it was the obligation on the part of the state government to
rehabilitate the bonded labourers according to the provisions of the
Bonded Labour System (Abolition) Act 1976 and it is the fundamental
right of the bonded labourers under article 21 of the constitution. The
petitioners therefore prayed for a direction to the state government to
take steps for the economic and social rehabilitation of the labourers who
were released from the shackles of bondage. The SC said that the plainest
requirement of article 21, 23 that the bonded labourers must be identified
and released and on release, they must be suitably rehabilitated. The act
has been enacted with a view to ensuring human dignity to the bonded
laborers and any failure of action on part of the state government, in
implementing the provisions of this legislation would be the clearest
violation of article 21, 23 of the Constitution. The courts also said that it is
not enough merely to identify and release bonded labourers, but it is
equally important that after identification and release, they must be
rehabilitated, because without rehabilitation, they would be driven by
poverty, helplessness and despair into serfdom once again.
In P. Sivaswamy v. State of A.P, the courts found that the rehabilitation
money payable under the Bonded Labour System (Abolition) Act, 1976
came down to Rs. 738/- per family. The Court observed that the assistance
was certainly inadequate for rehabilitation and unless there was effective
rehabilitation the purpose of the Act would not be fulfilled. Up-rooted
from one place of bonded labour conditions the persons are likely to be
subjected to the same mischief at another place, the net result being that
the steps taken by the Supreme Court would be rendered ineffective.
Red light areas in cities like Mumbai and Varanasi have thousands of such
children, male and female, from far-flung areas of the country and from
neighbouring countries like Nepal and Bhutan. Owing to widespread
corruption within the law enforcement agencies and their close nexus
with city based criminal gangs engaged in human trafficking, rescuing the
children fallen prey to human trafficking is literally impossible. Human
rights defenders like Mr. Ajeet Singh of Guria in Varanasi, Uttar Pradesh
state and Ms. Hasina Kharbhih of Impulse NGO Network of Shillong,
Meghalaya state are threatened by these gangs whenever they engage in
rescue operations.
However, no serious effort was made to give effect to this Article and
stamp out the shocking practice of bonded labour. The Forced Labour
(Abolition) Convention adopted by the International Labour Organisation
(ILO) in 1919 was ratified by India only in November 1954.
Some states in India had also enacted laws for abolishing bonded labour
For example, the Bihar Kamianti Act was passed in 1920, the Madras
Agency Debt Bondage Regulation in 1940, Kabadi System Regula-tion in
Bastar in Madhya Pradesh in 1943, Hyderabad Bhagela Agreement
Regulation in 1943, Orissa Debt Bonded Abolition Regulation in 1948,
Rajasthan Sagri System Abolition Act in 1961 (which was amended in
1975), and Bonded Labour System (Abolition) Act, Kerala in 1975.
The Child Labour (Prohibition and Regulation) Act was enacted in 1986
and defines a child as “a person who has not completed their fourteenth
year of age” [Child Labour (Prohibition and Regulation) Act, 1986, Part I,
Section 2(ii)]. It does not prohibit child labor per se, nor does it set a
minimum age for the employment of children. Instead, it regulates the
hours and conditions of work for child laborers, while prohibiting the
employment of children in twenty-five hazardous industries.
Minimum Wages Act, 1948
The Minimum Wages Act sets the minimum wage for certain enumerated
occupations and requires that overtime be paid to all workers who work
beyond a “normal working day.” In the case of children under fourteen, a
“normal working day” is four and a half hours.
This act regulates the work and wage conditions of plantation workers,
including children over the age of fourteen.
The Apprentices Act regulates the rights and work hours of apprentices,
and sets the minimum age for apprenticeships at fourteen years.
Misery and Suffering in Bondage:
One former Chief Justice of the Supreme Court (Justice P.N. Bhagwati)
described bonded labourers as ‘non-beings, exiles of civilisation living a
life -worse than that of animals’, for the animals are at least free to roam
about as they like and they can plunder or garb food whenever they are
hungry, but these outcastes of society are held in bondage and robbed of
their freedom even.
It has been pointed out that the majority of bonded labourers works as
agricultural labour in villages and belong to the Outcaste or tribal
communities. Of the total labour force in the rural areas, about 33 per
cent are engaged in non-agricultural activities, 42 per cent work as
cultivators, and 25 per cent as agricultural labourers. Of those who work
as agricultural labourers, 48 per cent belong to Scheduled Castes and 33
per cent to Scheduled Tribes.
They are socially exploited because though in theory they are assured
food, clothes, free tobacco, etc., in practice they get the food that is left
over, and clothes that are discarded by family members. They are made to
work for 12 to 14 hours a day and are forced to live with cows and
buffaloes in shed. If they fall ill, they may be procured some medi-cines
from the local Hakim depending upon the sweet will of the employer.
The Bonded Labour System (Abolition) Act was enacted in 1976. Twenty
years later, Human Rights Watch has found that the goals of this law-to
punish employers of bonded labour and to identify, release, and
rehabilitate bonded labourers-have not been met. The bonded labour
system continues to thrive. The district-level vigilance committees,
mandated by the Bonded Labour System (Abolition) Act and constituting
the key to the enforcement of the act, have not been formed in most
districts. Those that have formed tend to lie dormant or, worse yet, are
comprised of members unsympathetic to the plight of bonded laborers.
Whether for lack of will or lack of support, India's district collectors have
failed utterly to enforce the provisions of the Bonded Labour System
(Abolition) Act. The state of Tamil Nadu has an estimated one million
bonded labourers; according to the North Arcot District Collector, these
were the first charges ever brought under the act in Tamil Nadu.